S v Tjiukundi () [2020] NAHCMD 381 (28 August 2020);
“ANNEXURE 11”
IN THE HIGH COURT OF NAMIBIA
(TO THE SUPREME COURT OF NAMIBIA)
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Case Title: The State v Nguvitjita Karaumune Tjiukundi; The State v N.H Neshuku; The State v F.N Kakololo |
Case No: CR 61/2020 |
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High Court MD Review No: 1200/2020; 1198/2020; 1199/2020 |
Division of Court: Main Division |
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Heard before: Mr Justice Liebenberg et Mr Justice Miller (Acting) |
Delivered on: 28 August 2020 |
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Neutral citation: S v Tjiukundi (CR 61/2020) [2020] NAHCMD 381 (28 August 2020)
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The order:
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Reasons for order:
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LIEBENBERG J (concurring MILLER AJ)
1. The three matters were received by the High Court pursuant to special review proceedings in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 (hereafter referred to as the CPA). In the Tjiukundi matter, the accused person was convicted by the magistrate of contempt of court in facie curiae and, as will become apparent herein, the magistrate erred for want of following the proper procedures ascribed to section 108 of the Magistrates’ Court Act 32 of 1944 (hereafter referred to as the Act) which provides for contempt of court in facie curiae. The two further matters concern the same learned magistrate’s failure to invoke pre-sentence procedures after convicting the accused persons for failure to appear in court in terms of section 55 of the CPA.
2. In the Tjiukundi matter, the record reflects that the accused appeared on 19 March 2020 at the Windhoek Magistrate’s court on a warrant of arrest for failing to appear on a written notice, issued in terms of section 56 of the CPA. The accused’s proffered explanation for his non-appearance did not meet the court’s satisfaction and found him guilty in terms of section 55 (2) of the CPA. The matter was subsequently remanded for trial. What followed next ex facie the record is best shown by the record itself:
‘Court: Granted CONTEMPT OF COURT: Accused why were you talking in court? Accused: I did not know I cannot talk in court.’ (My emphasis)
Gleaned from the record, it would appear the court thereafter convicted and sentenced the accused to a fine of N$2 000 or two months’ imprisonment for contempt of court in respect of talking in court or as stated in a cover letter
submitted with the special review, ‘chatting to the person alongside him’. It would appear that either before or after the postponement the accused sat in the court’s gallery when found ‘chatting’ or the magistrate convicted him there and then for contempt of court. Presumably, the contempt proceedings was exercised in terms of section 108 of the Act, which provides for contempt of court in facie curiae. It remains a mystery what sentence the court imposed for the accused’s non-appearance, as same is clearly not reflected on the submitted record.
3. There are a number of special review matters dealing with the issue of contempt of court in our jurisdiction. It is therefore of grave concern that magistrates still find themselves culpable of not applying the correct procedures and applicable principles, while not reflecting same in the record of proceedings. Section 108 of the Act provides as follows:
‘108 Custody and punishment for contempt of court
1. If any person, whether in custody or not, wilfully insults a judicial officer during his sitting or a clerk or messenger or other officer during his attendance at such sitting, or wilfully interrupts the proceedings of the court or otherwise misbehaves himself in the place where such court is held, he shall (in addition to his liability to being removed and detained as in subsection (3) of section five provided) be liable to the sentenced summarily or upon summons to a fine not exceeding one hundred rand or in default of payment to imprisonment for a period not exceeding three months or to such imprisonment without the option of a fine. In this subsection the word “court” includes a preparatory examination held under the law relating to criminal procedure.
2. In any case in which the court commits or fines any person under the provisions of this section, the judicial officer shall without delay transmit to the registrar of the court of appeal for the consideration and review of a judge in chambers, a statement, certified by such judicial officer to be true and correct, of the grounds and reasons of this proceedings, and shall also furnish to the party committed a copy of such statement.’
4. Subsection 1 stipulates three instances where an accused can be convicted for contempt in facie curiae namely, ‘wilfully insults a judicial officer’, ‘wilfully interrupts the proceedings’, or ‘misbehaves himself’, where the court may invoke the section. Additionally there are important principles relating to fair trial and criminal procedure that must be observed when exercising summary jurisdiction. In this regard we endorse the dictum enunciated in the matter of Cape Times Ltd v Union Trades Directories (Pty) Ltd & Others,[1] where the following was said by Milne J, at 125 F
‘In many cases where summary jurisdiction is exercised, it is in respect of a flagrant contempt committed in facie curiae where the court is itself a witness to the act of contempt. In such a case the court can and does act immediately, though it must, of course, inform the person whom he proposes to punish, what the complaint is against him and afford him a proper opportunity of answering it....’ (Emphasis added)
5. In addition to providing the accused an opportunity to answer for his contemptuous conduct, the court must further guard against paying lip service to the word ‘wilful’ as stated in the subsection. Wilful conduct denotes intentional conduct. This has been referred to and explained best in S v Paaie[2]at 256A-C, where Muller AJ (Damaseb JP concurring), stated the following in respect of the element of wilfulness:
‘The element of mens rea also needs some emphasis. “Wilfulness” is a requirement for a conviction of the offence of contempt of court in terms of 108 (1). The correct approach in this regard is that set out by the Appellant Division of South Africa in R v Silber 1952 (2) SA 475 (A) at 482-4:
.. Summarized, it means that the person acts intentionally if he foresees the possibility that his words or conduct will be insulting, yet he proceeds undeterred. There has to be volition before an actus reus can exist, which excludes casual or accidental conduct. Something more than mere voluntary action is required for mens rea, and negligent action is not enough...’ (My emphasis)
6. Moreover, it was further stated by Schreiner JA in, R v Silber [3] at 480 F that:
‘The power to commit summarily for contempt in facie curiae is essential to the proper administration of justice. But it is important that the power should be used with caution for, although in exercising it the judicial officer is protecting his office rather than himself, the fact that he is personally involved and that the party affected is given less than the usual opportunity of defending himself make it necessary to restrict the summary procedure to cases where the due administration of justice clearly requires it. There are many forms of contempt in facie curiae which require prompt and drastic action to preserve the court’s dignity and the due carrying out of its functions.’
7. Having looked at these authorities, the record reflects that the magistrate neither informed the unrepresented accused what the complaint was against him nor afforded him a proper opportunity to answer to it. Had the magistrate done so, she would have been in a position to deduce whether his conduct was wilful and intentional. His only opportunity came in a written letter of complaint addressed to the divisional magistrate, where he advances reasons explaining why his conduct was unintentional. Justice therefore cannot be said to have been done in the circumstances of this matter. What aggravates it further, the magistrate sentenced the accused without allowing him to address the court in mitigation.
8. In our view, the drastic procedure followed by the magistrate in convicting a court attendee sitting in the gallery for talking without prior warning does not show a wilful disruption of the court proceedings. The invocation of section 108 must be used sparingly and only when absolutely necessary because of the unique nature of the enquiry. The court itself sits as a witness, prosecutor and judge in the court which ultimately has to objectively find beyond reasonable doubt that the conduct constitutes contempt of court in facie curiae.[4]
9. The situation could have easily been avoided had the magistrate informed the accused that his words or conduct are contemptuous and afforded him the opportunity to explain himself or to apologise and where such disruption persists, asked the accused to kindly leave the courtroom. Although there are cases where without a doubt the section should be invoked, in our view the circumstances of this matter can hardly be said to have warranted its invocation and falls to be set-aside.
10. What is of further concern is that the magistrate did not follow the peremptory wording of section 108 (2) of the Act where it states that the ‘judicial officer shall without delay transmit to the registrar of the court of appeal for the consideration and review of a judge in chambers, a statement, certified by such judicial officer to be true and correct’ as well as to the accused person. This statement should be accompanied by the part of the record which concerns the contempt of court.[5]
11. The Neshuku and Kakololo matters are related to a dissimilar irregularity of equal gist. The facts and applicable legal principles are the same in both cases. Both accused persons appeared on warrant of arrests issued following their failure to appear in court pursuant to written notices to appear issued in terms of section 56 of the CPA. The record in both matters reflect that the magistrate did not follow pre-sentence procedures before imposing sentences for their failure to appear in court and sentenced both to a fine of N$1 000 or two months’ imprisonment.
12 By omitting to conduct a pre-sentence enquiry in both matters the magistrate committed a material misdirection which in our view vitiates the proceedings in respect of the enquiry for failure to appear as it tainted the accused’s right to a fair trial. The sentence imposed cannot be said to have been decided objectively and impartially as it unheeded the so-called triad of Zinn, consisting of the crime, the offender and the interests of society.[6] So too, did the aims of punishment suffer the same fate. This omission alone, vitiates the sentences imposed.
13. In addition to the above, the procedure to be followed after a warrant of arrest has been issued for the non-appearance of the accused and his subsequent arrest. The court mero motu, and where necessary with the assistance of the prosecutor in a role of amicus curiae, conducts a summary enquiry to whether the accused person received the summons and if admitted, the onus is on the accused to satisfy the court on a reasonable possibility that his or her non-appearance was not due to fault on his or her part.[7]
14. Moreover, both accused persons stated in reply to the court’s enquiry that they were not aware of the said tickets. The record in each case simply reflects the court stating in reply thereto ‘the court does not accept your explanation and finds you guilty’, which in our view, disregarded the procedure pursuant to an enquiry in terms of section 55 of the CPA. The court should have firstly established whether the person in fact before the court was the same person on the ticket; satisfied itself whether the accused in fact admits or denies receiving the notice to appear and where same is denied, receive evidence to establish such fact. In some cases it may even be necessary to call a witness. The accused must be allowed to tender evidence in rebuttal to discharge the onus upon him, provided the court decides that on the basis of beyond reasonable doubt.[8]
15. It is clear that nowhere on record in both matters has the above procedures been followed subsequent to the accused person’s denial of knowledge of the said notice to appear. In this regard it can also not be said that the magistrate acted objectively as the court did not heed regard to the correct procedures. It follows that for the stated reasons, the proceedings in both matters are vitiated.
16. In the result the following order is made:
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J C LIEBENBERG JUDGE |
K MILLER ACTING JUDGE |
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