CASE NO:. CR
150/2007

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

SEM
EDWARD

(HIGH
COURT REVIEW CASE NO. 1512/2007)

CORAM: DAMASEB,
J.P. et
MULLER, J.

Delivered
on: 10 October 2007

SPECIAL
REVIEW JUDGMENT

MULLER,
J.: [1] This
matter was submitted to me as a special review in terms of Section
304 (4) of the Criminal Procedure Act, No. 51 of 1977 (CPA). It
entails two convictions of the accused. As I understand it, the
first conviction was because he failed to attend the Court
proceedings on 7 August 2007. He was sentenced to N$100 or 30 days
imprisonment. The second conviction was for contempt of Court in
facie curiae when he
apparently uttered insults towards the magistrate after the first
sentence was imposed. For the conviction of contempt of Court the
accused was sentenced to N$300.00 or 90 days imprisonment.

[2] The magistrate
failed to comply with the provisions of S 108 (2) of the Magistrate’s
Court Act, no. 32 of 1944 which reads:

“(2)
In any case in which the Court convicts 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 his proceedings, and shall also furnish to the
party committed a copy of such statement”.

The
Divisional Magistrate, Windhoek, who submitted this matter for
special review, confirmed that the presiding magistrate failed to
comply with S 108 (2). This is a serious failure and one that the
Magistrate’s Commission should consider. This is not only a
failure of an explicit statutory requirement, but the accused has
been severely prejudiced by it. In S
v Johannes Paaie, a
review judgment delivered on 28 October 2005, no. CR 110/2005 the
entire issue of contempt of Court in
facie curiae had
been discussed with the purpose that all magistrates in Namibia
should take notice thereof. In that review guidelines to be followed
in such cases were provided to magistrates. It was explicitly stated
on p23 of that review judgment that the procedure of S 108 (2) should
be followed.

[4] From
the record it appears that the accused was before Court on two
charges, namely

(a) a
contravention of sections 6 and 7 of Ordinance 12 of 1956, to wit
defeating the course of justice; and

(b) resisting
a member of the police.

The documents put before
me do not contain a charge sheet. According to the typed record the
accused appeared for the first time in Court on 11 May 2004 and was
remanded in custody. His case was thereafter postponed on several
occasions by different magistrates. The reasons for these
postponements are not clear, but it seems that the accused wanted
legal representation by the Legal Aid Directorate and that could not
be finalised. Bail was apparently granted at some stage and a legal
representative appointed by the Legal Aid Directorate appeared for
the accused.

[5] However,
on the particular day, 7 August 2007, the accused appeared in person.
On the previous court day, the 11^th
June 2006, it is recorded that the public prosecutor informed the
Court that the accused was in custody and asked for a warrant of
arrest to be issued, but to be held over until the 7 August 2007.
This was done. It is important that there is no dispute about the
fact that the accused was in custody on 11 June 2007. Strangely, it
is recorded that the accused (defence) was in person, which cannot be
correct, since it seems to be common cause that the accused was
indeed absent.

[6] On
the fateful day, namely 7 August 2007, the same magistrate, who
postponed the matter on 11 June 2007, who also issued the warrant for
the arrest of the accused and who was told that he was in custody,
presided. Because the recording of the proceedings on that day are
very brief, I quote it in
extenso but
unedited:

“ON
07/08/2007

PRESIDING
OFFICER: Ms
Haikango

PUBLIC
PROSECUTOR: Mr
Husselman

INTERPRETER: Ms
Nakanyala

ACCUSED: In
person

SP: Accused
was not at Court on the 11/06/2007 if he can tell the court as to
where he was.

CRT: Informed
accused person that it is a defence in law if failure to appear in
court was not done to fault on his part.

As
well as for Legal Representation and Legal Aid assistance.

Own defence
but I have applied for Legal Aid, here is the response.

CRT: Where
were you on the 11/06/2007?

ACC: I
was at the Hospital.

CRT: Where
is your medical certificate?

ACC: My
card I have left it there.

CRT: I
am not asking the medical card but medical certificate indicating
that you were at the Hospital.

ACC: I
did not bring any.

CRT: Explanation
not accepted.

Guilty
failure to appear in court.

Mitigations: But
our officials at the Prison they are not allowed us to call our
lawyers.

CRT: Is
not about Lawyer you have given one state prosecutor. Court will
conduct them. Fine N$100-00 or 30 days imprisonment.

SP: Till
10/09/2007 for fixing of trial date with the Lawyer.

CRT: Remanded
10/09/2007 for fixing of trial date. Accused in custody.

POSTEA:

Accused
insulted the court by saying Pokoto and Tizing the court. Run out of
court does not want to listen to what the court is pronouncing to him
and what he was suppose to do when he was being warned by the Court
and went to the Hospital. That he should request the Doctor to
provide him with medical certificate. Accused uttered words to the
court again of saying stupid, tokofo and Police Officer took him to
the cells insulting and shouting loud by saying you will never try me
next court appearance.

Guilty
again for contempt of Court. Fined N$300-00 or 90 days imprisonment
i.a.”

[7] I
shall commence to deal with the first conviction. From the record it
appears that the magistrate required a medical certificate to confirm
that the reason for the accused’s absence on the 11^th
June 2007 was that he was in hospital. When he could not produce the
medical certificate, she did not accept his excuse (for his absence
from Court) and summarily convicted him for “failure to appear in
Court”. The accused was apparently afforded the right to provide
reasons for mitigation. Thereafter he was sentenced to N$100 or 30
days imprisonment.

I find this
procedure totally confusing and not in accordance with justice. The
magistrate knew that the accused was in custody on 11 June 2007. He
could not just be absent. There must have been a reason why he was
not brought to Court by his custodians. The magistrate issued a
warrant for his arrest, but held it over. The reason provided by the
accused on 7 August 2007 is a plausible one. The easiest thing to do
when the accused explained that he was in hospital, while he was
still in custody and although he did not have a medical certificate,
would have been to ascertain from his custodians what the position
was or to obtain a medical certificate through them. The public
prosecutor should have been asked what his position is or whether he
can obtain information from the custodians of the accused. This was
not done. What more can an accused, who is in custody, do?

[8] What
is further confusing is that the magistrate indicates when the
accused was later convicted for contempt of Court, that he was again
so convicted, while the record reflects a conviction on the basis
that he failed to appear in Court on 11 June 2007. The conviction of
“guilty failure to appear in Court” is also unknown to me.
Ordinarily, if an accused who is not in custody fails to appear in
Court and for whom a warrant for his arrest had been issued, cannot
provide a plausible excuse for his absence, that warrant is confirmed
and the bail of the accused is cancelled. He is not convicted for
this failure. However, once an accused is in custody, his failure to
appear in Court must be explained on the postponed date by his
custodians. They either failed to bring him before Court or he
escaped from prison, in which latter case the warrant for his arrest
held over is then enforced.

[9] The
conviction and sentence for the accused’s failure to appear in
Court on 11 June 2007 must be set aside. It is apparent from the
record that this “conviction” was the cause for the accused’s
distress, which led to his conviction of contempt of Court as the
magistrate understood and recorded it.

[10] The
entire proceedings are recorded by the magistrate under her heading:
“Postea”.
I do not intend to repeat what has been said by this Court in S
v Johannes Paaie,
supra, in respect of a conviction of contempt of Court. The
magistrate should have taken notice of it, but obviously did not.
When that judgment is considered, as well as the Court decisions on
this subject, which have been either referred to or quoted
extensively, the magistrate’s decision cannot stand. I shall refer
to a few aspects that indicate that the accused could not have been
convicted of contempt of Court.

[11] In
the first instance, an interpreter was used during the proceedings on
7 August 2007, namely Ms Nakanyala. It appears that during nearly
all the previous postponements there was an interpreter. Normally
the Court has to be very careful that the words used and which the
magistrate found insulting, were in fact the words that the accused
used. (S v Johannes
Paaie, supra,
p18-19)

In
this instance the situation is even more serious. The gravamen of
the accused’s conduct and words used by him were not even
interpreted, although an interpreter was necessary and present. What
the magistrate found to be contemptuous behaviour and insulting
language was recorded by herself. There is no indication that she
understood the accused’s language and it would not have been proper
for her to take note of anything that was not said in the official
language, namely English. The interpreter neither interpreted what
the accused said, nor confirmed what the magistrate recorded.

[12] Despite
this blatant error the accused was not afforded the opportunity to
put his version to the Court before conviction. Even if his conduct
may have been contemptuous, he must be given the opportunity to
address the Court in that regard. (S
v Johannes Paaie,
supra, p13; Cape
Tunes Ltd v Union Trade Directories (Pty) Ltd and Others
1956 (1) SA 105 (N)).

The
accused may apologise and must be given the opportunity to do so. (S
v Johannes Paaie,
supra p14; R v Hawkey
1960 (1) SA 70 (SR) at 71G-72A.

In
this instance the audi
alterem partem rule
was not applied.

[13] The
elements of the offence of contempt of Court, namely unlawfulness,
contempt of a judicial body and mens
rea have not been
proved. The only version is that of the magistrate, who is both a
(the only) witness, prosecutor and judge in the words of Ramsbottom,
J in Duffey v Munnik
and Another 1957 (4)
SA 390 (T) at 391F.

(See
also S v Johannes
Paaie, supra, p22; S
v Nyalambisa 1993
(1) SACR 172 (Tk) at 175e to 176f).

[14] I
have not dealt with the accused’s letter to the Divisional
Magistrate and the reasons provided by him therein, because it does
not contain evidence put before the Court. However, it is apparent
that the magistrate who presided on 7 August 2007 and who convicted
him, should not preside over his criminal case in future and I shall
make such an order.

[15] In
the circumstances the following order is made:

1. The
conviction and sentence imposed on 7 August 2007 in respect of the
accused’s non appearance in Court on 11 June 2007, to wit guilty of
failure to appear in Court and for which he was sentenced to N$100 or
30 days, are set aside;

2. The
conviction of contempt of Court and the sentence of N$300 or 90 days
imprisonment imposed on 7 August 2007 are set aside; and

3. The
magistrate who presided at the proceedings of 7 August 2007 should
not preside over the accused’s criminal case, whenever it is heard.

MULLER, J.

I agree

DAMASEB, J.P.