S v Mhlati

• Jurisdiction: South Africa
• Judge: Jafta AJP, Norman AJ
• Judgment Date: 14 November 2002
• Docket Number: A156/2002
• Court: Transkei High Court
• Hearing Date: 20 September 2002
• Citation: 2002 JDR 0997 (TkH)

Jafta AJP et Norman AJ:

[1] The appellant was convicted of contempt of court by the magistrate at Willowvale. She was sentenced to pay a fine of R300-00 or undergo 60 days imprisonment. With leave of the magistrate she appealed to this Court against her conviction. When the matter came before us the respondent conceded that the magistrate's conviction could not be supported as the entire proceedings leading to the granting of the order that forms the basis of contempt of court were fatally defective and the order itself did not constitute a court order.

[2] The appellant challenged the convicted on the following paraphrased grounds:

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2.1

The appellant did not disobey any court order as there was no judgment handed down against her.

2.2

The magistrate did not have authority to convert the hearing of an informal complaint into a civil trial.

2.3

The hearing before the magistrate which led to the granting of the impugned order was not preceded and based upon pleadings, and therefore was neither civil nor criminal in nature.

2.4

The procedures applicable to the hearing of cases by magistrates' courts were not followed.

[3] The record reveals that on 9 November 2001 the appellant and one N tombintathu Tshuku appeared before the magistrate at a hearing. The circumstances leading up to their appearance are not clear but it appears that they had been previously advised to bring their respective witnesses. Ntombintathu had brought four witnesses and the appellant did not have witnesses. Tedious though it might be, it is however necessary to quote in full what occurred before the magistrate on that date. After the appellant had advised the magistrate that she expected her attorney to attend the hearing the following appears on the record:

"Court also (sic) Mr Nombambela [appellant's attorney] came to see me in chambers and wanted clarification on the nature of the matter. He said the matter may proceed in his absence and that she (sic) is to talk to you. Before he leaves. Respondent [appellant] yes he talked to me the matter

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may proceed I want judgment.

Plaintiff is laying a complainant (sic) against respondent for a sum of R4 950-00 for a machine which is used to make bricks that she hired at a certain sum per day and also for the ration (sic) machine which the respondent is refusing to return.

NTOMBINTATHU TSHUKU d.s.s.

I stay at Mpozolo A/Area. I am the complainant (sic) plaintiff in the matter. I know defendant. We are of different locations. I have a machine for making bricks. I am renting out or people hire the machine. I charge R75-00 a day for the machine (seventy five rands) if I have to send my labourers to make the bricks. I charge R 6-00 per brick. I gave the defendant the machine. It was in June this year. She would return the machine. When (sic) he finished. I charged her R 75-00 per day. I gave her the machine on 14/06/2001. Respondent sent a teacher to fetch the machine. If the person is to use the machine herself without my labourers she has to transport the machine to his (sic) site. I wrote defendant a letter at the end of July demanding the machine to be returned. When I wrote her a letter to return the machine. I expected her to pay me R 1 000-00. The R4 900 includes monies I ought to have made had (sic) he returned the machine. I have been doing this business of hiring out the machine for three years now. My rental charge is generally known to be R75-00. Defendant is refusing to pay and has not returned the machine. I took the complaint to the police but she refused. Police referred me to the magistrate as I solely depend on the machine and I have no funds to apply (sic) an attorney.

X.X. BY DEFENDANT

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Ask questions on any aspect of her evidence you dispute. As you initially said you do not agree with the charge (sic) you have to follow that aspect in defence. You would be assisted on the way so the court could make a proper determination in the issue. I have no questions to ask. I want judgment. She has no questions.

BY COURT

I was not aware I have to fetch the machine to mitigate (sic) my danger. Witness excused.

COURT: As defendant is not challenging any aspect of plaintiff (sic) evidence other witnesses would not be called to corroborate as they have already done so when the matter was pre-discussed but because of judicial implication and the contractual aspect I felt the matter be formally tried. [Our emphasis]

PLAINTIFF's CASE CLOSED

You may give your own evidence. You will also be asked questions by plaintiff. The court may also ask questions if necessary. You may call your own witness if you have any.

DEFENDANT has no witness. She is not to give sworn evidence. I am prepared to take and consent to judgment.

DEFENCE CASE CLOSED

ADDRESS BY PLAINTIFF

I ask for judgment in my father (sic). Defendant is merely refusing to pay

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me. I am asking for R4 900-00 monies that I should have made from the day she took the machine.

ADDRESS BY DEFENDANT: I am prepared to take judgment.

JUDGMENT: Judgement is granted in favour of plaintiff in the sum of R1 425-00. The sum of R1 425-00 is to be paid in three equal instalments starting from 30/11/2001. Further defendant is to transport back the machine to plaintiff's place not later than 18/11/2001.

Signed Mr Mavumengwana ML

Magistrate: Willowvale."

[4] On 10 April 2002 the appellant was arrested and brought before the same magistrate on the basis of a warrant issued by him. The magistrate...