S v Pillay

• Jurisdiction: South Africa
• Judge: Rabie JA
• Judgment Date: 17 August 1990
• Citation: 1990 (2) SACR 410 (CkA)
• Hearing Date: 12 June 1990
• Counsel: J J Gauntlett SC (with him L E Leach) for the appellant L J Langeveld for the State
• Court: Ciskei Appellate Division

S v Pillay
1990 (2) SACR 410 (CkA)

1990 (2) SACR p410

Citation	1990 (2) SACR 410 (CkA)
Court	Ciskei Appellate Division
Judge	Rabie JA
Heard	June 12, 1990
Judgment	August 17, 1990
Counsel	J J Gauntlett SC (with him L E Leach) for the appellant; L J Langeveld for the State

Flynote : Sleutelwoorde B

Contempt of court — Contempt in facie curiae — Warning that it is Court's intention to consider whether person should be found guilty of contempt of Court — Such warning not restricted to cases of contempt ex facie curiae — Question of whether warning necessary to be decided in light of facts of each particular case — Advocate involved in two C incidents in Court where Judge had criticised him for showing annoyance with Judge's interruption of cross-examination, and in a further incident in Judge's Chambers where he had allegedly been disrespectful — Court holding on appeal that not proven that advocate had acted with intent and in any event in circumstances where he was reasonably entitled to believe that two incidents in Court had been disposed of and D Judge not entitled to take into consideration remarks made in his Chambers, warning should have been given that it was Court's intention to consider whether he should be found guilty of contempt of Court — In absence of warning conviction and sentence set aside.

Headnote : Kopnota

E The appellant, an advocate, had been found guilty of contempt of Court arising out of his conduct in a criminal trial. The presiding Judge had based the conviction on three incidents, two of which occurred in Court and the third in the Judge's Chambers. The first incident occurred whilst the appellant was cross-examining a State witness and the Judge interrupted the cross-examination. The Judge alleged that the appellant F had thrown down a piece of paper in annoyance. The second incident occurred when the Judge refused to allow a certain question in cross-examination. The Judge alleged that the appellant had expressed annoyance by flopping down in his chair. The third incident occurred when the appellant approached the Judge in his Chambers to discuss the G previous two incidents. The Judge told him that he was not prepared to listen to his explanation at that stage as there could be no excuse for his behaviour. The appellant then left the Chambers allegedly saying, 'suit yourself'. On appeal the Court held as regards the first two incidents that the Judge had erred in intervening in the manner in which he had and as regards the third incident that he was not entitled to take into account this incident in supporting a finding of contempt of H Court in respect of the other two incidents. The Court held further that, contempt of Court being an offence which required the existence of an intent to bring the Court into disrepute, there was nothing to show that the appellant had had such intent. The Court held furthermore that in any event in the circumstances of the case where the appellant was reasonably entitled to expect that the first two incidents had been I disposed of and that the Judge was not entitled to take into consideration what had taken place in his Chambers, the appellant should have been given a warning that it was the Court's intention to consider whether he should be found guilty of contempt of Court: such a warning was not restricted to cases where there was a contempt ex facie curiae but depended on the circumstances of the particular case. In the absence of such warning in the instant case the conviction and sentence had to J be set aside.

1990 (2) SACR p411

Case Information

Appeal from a conviction and sentence for contempt of Court in the Ciskei General Division (Liebenberg AJ). The facts appear from the reasons for judgment.

J J Gauntlett SC (with him L E Leach) for the appellant.

L J Langeveld for the State.

Cur adv vult.

B Postea (17 August 1990).

Judgment

Rabie JA:

The appellant, a practising advocate who appeared for the second of two accused in a murder trial before Liebenberg AJ in the General Division of the Supreme Court of Ciskei, was during the course of the hearing found guilty of contempt of Court committed in facie C curiae and sentenced to a fine of R250 or imprisonment for 50 days. The appeal is against the conviction and sentence.

In what follows below I shall, for the sake of brevity, refer to the learned Acting Judge simply as 'the Judge'.

The finding that the appellant committed contempt of Court arose, as will appear more fully below, from three incidents which occurred in the course of the murder trial. The first and second of these incidents took D place during the cross-examination of a witness for the State, Nontomzana Fanisile, by the appellant, and the third during an adjournment for lunch when the appellant went to see the Judge in his Chambers.

The facts relating to the first incident are as follows. Fanisile, who is the daughter of the second accused, said in the course of her E evidence that her mother assaulted the deceased with a stick on the evening when the deceased was killed and that she, the witness, tried to stop the assault. As to this evidence the appellant asked her: 'Did you intervene only after your mother had commenced hitting the deceased with the stick or before that?' The witness replied: 'Yes, my Lord.' The appellant then asked her: 'Yes, what?' The Judge then intervened, and according to the record the following exchange then took place between F the Judge and the appellant:

'Court: Yes, . . . yes to your question. Your question was a clear one, Mr Pillay. You seem to be annoyed.

Mr Pillay: I'm not annoyed, I am just confused, my Lord.

Court: I can't see why you are confused, you said - did you only intervene after your mother started G hitting the deceased and she said - yes.

Mr Pillay: Or before. Because the reply to that was, I couldn't get a reply from the witness. I did not understand that.

Court: Fine, proceed.

Mr Pillay: As the Court pleases.

Court: When I intervene, Mr Pillay, I only do so because H maybe I didn't quite get the drift of what you were saying, understand? It is only in the interest of what I've got to do here.

Mr Pillay: As the Court pleases, yes, I didn't take umbrage at the Court's attitude, my Lord, with respect.'

The appellant then continued with his cross-examination and nothing more was said about the incident at that stage. Later in the day, after the I adjournment for lunch, the Judge stated that there were certain matters which he 'unfortunately' felt bound to 'place on record'. One of these matters related to the incident referred to above, and the Judge said the following in regard thereto:

'. . . (T)here was an occasion when during the cross-examination of Mr Pillay, for accused No 2, I had occasion to interrupt him when he asked a certain question. On this occasion Mr Pillay had a paper in his hand which he then flung down on the table in front of him and J expressed clear annoyance

1990 (2) SACR p412

Rabie JA

A at my interruption. The record will show that at that stage I remarked on this and told Mr Pillay that I can see that he is annoyed. The matter was not taken further at that stage, he having informed me that he was not annoyed.'

Having said this, the Judge dealt with the second and third incidents, and thereafter he gave the appellant an opportunity of replying to what he had 'put on record'. As to the first incident the appellant said the following:

B 'My Lord, first of all, with regard to the first incident where your Lordship indicates that I threw the piece of paper down, I did not fling the paper down and if I did fling it down, it is, with respect, as I indicated, that it was not at annoyance at the Court but simply as a result of my confusion.'

The second of the incidents which led to the finding that the appellant committed contempt of Court took place some time after the C first incident, near the completion of the appellant's cross-examination of the witness Fanisile. The appellant, no doubt in an endeavour to raise a doubt as to the witness' professed ability to remember all the things she claimed to have observed on the night of the murder, asked her whether she could remember where a number of persons, whose names he mentioned to her, stood in the house of the second accused at a certain stage of the events on the night in question. The witness, in reply, D stated where each of the persons stood at the time referred to by the appellant, whereupon the appellant asked her whether she really could remember 'this fine detail as to where everybody was standing that night'. She replied that she could, whereupon the appellant asked her: 'Do you remember the first question I put to you under cross-examination?' The Judge then intervened, as appears from the following extract from the record (Mr Langeveld, referred to by the E Judge, was counsel for the State):

'Court: Do you remember the first question you put to her?

Mr Pillay: Yes.

Court: Do you remember, Mr Langeveld?

Prosecutor: No, my Lord.

Court: I don't think that's a reasonable question to ask.

F Mr Pillay: My Lord, with the greatest of respect, this. . . .

Court: I just want to warn you that your behaviour now, I will not tolerate in my Court again. Do we understand each other?

Mr Pillay: If your Lordship. . . .

Court: If you, if you. . . .

Mr Pillay: If your Lordship can tell me which behaviour your Lordship is referring to.

G Court: You will not express any annoyance when I address you in this Court by flopping down in your chair. If you want me to then do that. Shaking your head around. You know you have people here, sitting and watching what you are doing and I will not tolerate that. I don't ask you to like any question that I H ...