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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Review Case No: 39/2018

In the matter between

THE STATE

and

GEORGE MEIRING                                                                                              ACCUSED

 

J U D G M E N T

(ON REVIEW)

Headnote

An Accused was convicted of contempt in facie curia by a magistrate – the accused had in exasperation at the third postponement of his trial left the dock muttering foul language and had also supposedly, but unproven, exchanged words with the orderly – Accused was spitefully held in custody for some hours awaiting an enquiry into the alleged contempt

Held: the conduct, on the facts, did not remotely constitute contempt of court whether in terms of section 108 of the Magistrates Court or at common law; the law on contempt in facie curiae traversed and set out

The sentence included a R5000 fine which exceeded the limit of R200 prescribed in section 108

Conduct of both the prosecutor and the magistrate a disgrace and calculated to bring Courts into disrepute

Order made to set aside the conviction and sentence and refund the fine and a direction issued to NPA and Magistrates’ Commission to educate Court officials about the law on unruly behavior in Court

 

SUTHERLAND J:

 

Introduction

[1] A Magistrate held that the Accused, Meiring, was in contempt of court and fined

him R5000 or three months’ imprisonment. This matter comes before this court by way of automatic review pursuant to the provisions of section 108(2) of the Magistrates Courts Act 32 of 1944. The provisions of section 108 read:

“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 5 provided) be liable to be sentenced summarily or upon summons to a fine not exceeding R2 000 or in default of payment to imprisonment for a period not exceeding six 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 his proceedings, and shall also furnish to the party committed a copy of such statement.”

(Underling supplied)

[2] It is immediately apparent that the magistrate was unaware of the provisions of this section. That is evident from the sentence of R5000 exceeding the maximum sum permissible. The magistrate, in addition, failed to submit the statement prescribed by section 108(2). On those grounds alone, the magistrate’s conduct is irregular.

[3] I have received a helpful and constructive submission from the Deputy Director of Public Prosecutions, Johannesburg, Adv Z J Van Zyl SC who, with Adv A M Persad, a State Advocate, recommends the judgment and sentence be set aside. I agree, the events which took place, as addressed by the magistrate, do not constitute contempt of court at all still less a transgression of section 108.

 

A critique of the facts

[4] The circumstances are described in a transcript of exchanges that took place after the critical events and occurred whilst the court was either not in session or was no longer dealing with Meiring’s matter. That, too, is a ground why the events could not constitute contempt in facie curia as held by the magistrate.

[5] Meiring was appearing for a third time in the matter.  It was again postponed. He evidently was aggrieved by this turn of events.  He gave expression to his frustrations. Meiring used the word “Fuck” once, perhaps twice. The Prosecutor claimed to have heard Meiring say “this country is fucked”, which Meiring did not admit to saying. The prosecutor later in cross-examination declared that this was an act of disrespect not only to the court but to the country. Meiring admitted using foul language after he had heard it announced that the case was postponed yet again. He apologised at once, and repeatedly apologised.

[6] Meiring was also accused of shoving an orderly. He denied this accusation; he claims that the orderly grabbed him. It was later surmised by the prosecutor that when Meiring uttered the word “Fuck” the orderly asked what he had said, and Meiring had replied “who are you?’ The magistrate also took umbrage at Meiring having the audacity to lean on the ‘bench’ – I presume this refers to the dock.

[7] Meiring was then detained in the cells. He had been released on bail. Why the magistrate thought this was necessary is not explained on the record. The only inference to draw is that it was done out of spite. Whether or not this gratuitous incarceration for some hours founds a civil claim, I express no view.

[8] Upon resumption, Meiring testified. He explained that he was experiencing many frustrations. He described his personal circumstances as losing everything. His marriage was crumbling, he was losing his house, he had to care for his parents, and he was in financial trouble, which was exacerbated by paying for his attorney for each appearance when nothing happened again and again. He said: “ …the word that I uttered was not pointed at anyone in this court, I am truly sorry for the word that I used and ….I am just frustrated with life at this moment ….”

[9] The prosecutor then subjected Meiring to an extensive cross examination. The bulk of the questions dealt with the exchange between Meiring and the orderly. It was a harassing attack calculated to humiliate rather than to extract facts. That approach is at variance with the ethical obligations of counsel, whether for the defence or the prosecution. Despite the intensity of the cross examination, not one iota of information was elicited that could found a basis upon which to contend that an act of contempt of court had occurred, not least of all that any wilfulness was present.[1]

[10] Notwithstanding that, the magistrate in his judgment purported to find that Meiring had committed contempt of court. The judgment is no more than a sanctimonious plethora of clichés unsupported by reference to facts. It is a disgrace. I cite the transcript in full:

“Alright. These are contempt of court proceed in facie curia and this shall be extempore. The behaviour or conduct of this particular accused, Mr Meiring, is disturbing and I say that with the greatest of respect, the word, I cannot find appropriate English term to describe the conduct this court witnessed, blatant, (indistinct), careless behaviour on his part, showing no regard for this court, its institution or its personnel that uphold its sanctity and gives it the respect it requires. He displayed it right in front of the public gallery, much to their dismay and the court had to call him back. And I do not have to repeat it, because he knows what he did and understa… he understood (indistinct) the gravity of his conduct, which is completely unacceptable. And his attitude that he exhibited, the way he carried himself, completely unacceptable. And his attitude that he exhibited, the way he carried himself, completely, completely showing disregard to this court.

After the matter was adjourned, giving him an opportunity to explain himself, it became pretty clear, there is no justification, all he has is excuses for his outbursts, which were derogatory and placed the court’s system, this court’s reputational or integrity in disrepute and that cannot go unnoticed or unpunished. And I cannot find any reason why this court can condone or accept the explanation as provided. I find him GUILTY of contempt.”

[11] When the case moved onto sentence, the prosecutor got properly stuck in. He belaboured the point that Meiring had been disrespectful towards the orderly. The orderly was not called to testify. The prosecutor elided the exchange between Meiring and the orderly into disrespect for the court. Furthermore, the prosecutor, as alluded to earlier, was especially excited about the remark that “the country is fucked”, an alleged utterance not admitted. The prosecutor concludes with a contention that a suspended sentence would be inadequate, and says this:

“ …if need there should be a sentence that is meted out to him that will make him tomorrow to respect the [decorum] of this court with sanctity and every individual that [he?] come across.”

[12] The Judgment on sentence was approached as if sentence was being imposed after conviction of a conventional crime, a clear lack of awareness that such a perspective is inappropriate.[2] The “offence” is said to be serious. Again, the Magistrate, like the prosecutor, elides the exchange with the orderly with notions of the Court’s role as a ‘gatekeeper’ between “order and anarchy”. He expresses the view that the sentence must act as a deterrent to others in society.  Ultimately, the magistrate concludes with this statement:

“ … I have concluded  the following as a suitable sentence to cater not only for the seriousness of the offence and give you another opportunity to reintegrate into the society and hopefully there will be an evolution of your mindset not only mindset but it also contaminate your behaviour in a positive manner. You are hereby fined R5000 or three months imprisonment.” (sic)

[13] The judgment is quite manifestly an utter misdirection. A point to emphasise, is that not only does the magistrate impose a sentence two and half times the maximum jurisdiction, but he imposes a fine of R5000, an objectively large sum, on a man who had told him he is already under financial stress.  The judgment is a disgrace.

[14] There is extensive case law on what constitutes contempt of court. It is plain that the magistrate was unacquainted, not only with section 108 of the Magistrates’ Court Act but also with the case law.

[15] I can do no better than cite the Memorandum composed by Advocates Van Zyl and Persad:

“5. The power of the court to convict and sentence a person for contempt of court is ordained by s 108 of Act 32 of 1944. However, this power is to be applied by the court within very strict guidelines. In S v Van Niekerk 1970 (3) SA 655 (T) the Court held at 657F that:

‘(B)efore a conviction can result, the act complained of must not only be wilful and calculated to bring into contempt but must also be made with the intention of bringing the Judges in their judicial capacity into contempt or of casting suspicion on the administration of justice’.

Similarly, in S v Harber and Another 1988 (3) SA 396 (A) the Court held at 413H that:

‘Apart from the so-called newspaper cases, I am not aware of any South African authority for the proposition that contempt is a crime of strict liability. On the contrary, in the last two decades it seems to have been generally accepted that intention is an element of the offence’.

In S v Kaakunga 1978 (1) SA 1190 (SWA) at 1193G the Court held that:

‘(A)lvorens ‘n person skuldig bevind kan word aan minagating van die hof, die Staat moet aantoon dat hy deur sy optrede, hetsy deur sy handeling, hetsy deur die woorde wat gebruik is, inderdaad die opset gehad het om die waardigheid, eer of gesag van die hof in diskrediet te bring of te minag’.

See also S v Molapo 2004 (2) SACR 417 (T) at 417g – 418a where the above case law was quoted with approval per Grobbelaar J, Jordaan J concurring.

5.1 The full bench of the ECD (per Schoeman J, Chetty J concurring) found in S v Mitchell 2011 (2) SACR 182 (ECD) at 185 a – b that contempt is inter alia committed:

(a) where a judicial officer, or other officer of the court, is wilfully insulted during a sitting; or

(b) where the court proceedings are wilfully interrupted; or

(c) where the person otherwise misbehaves himself in the place where the court is held, and thereby interferes with the proper functioning of the magistrates’ court.

5.2 Satchwell J …..stated as follows in S v Bresler and Another 2002 (2) SACR 18 (C) at 25 a – b:

“It is necessary to delineate the scope of the offence. Firstly, the interest to be served is not the private interest of the member of the court. Secondly, it is not sought to protect the self-esteem, feelings or dignity of any judicial officer, or even the reputation, status or standing of a particular court. The interest served and protected is ‘the moral authority of the judicial process as such”:

‘The purpose which the law seeks to achieve by making contempt a criminal offence is to “protect the fount of justice” by preventing unlawful attacks upon individual judicial officers of the administration of justice in general which are calculated to undermine public confidence in the court’.

(Per Corbett CJ in Argus Printing and Publishing (supra at 29E – F)

5.3  Satchwell J then, at 35h – 36i applied some of the considerations identified by the Constitutional court in S v Mamabolo (ETV and Others Interviewing) 2001 (1) SACR 686 (CC)

(a) Who is the author?

(b) What was done?

(c) When did such action take place?

(It is of some import to note that Satchwell J here finds “This was not a once-off loss of temper or expression of distress or dissatisfaction” We pause to note: as is obviously the case in the present matter).

(d) Where did the action take place?

(e) To whom were these actions directed?

(f) What triggered the action?

(g) What was the underlying motive?

5.4 The Constitutional Court had dealt extensively with this offence in the matter of S v Mamabolo supra at paras 44 – 46.

We can do no better than quoting extensively from that judgement, with some own emphasis added:

“….Ultimately, whether the test is worded this way or that, the real question is whether the trier of fact has been satisfied, with the requisite preponderance depending on the nature of the case, that the publisher of the offending statement brought about a particular result. In the case of scandalizing the court that result must have been to bring the administration of justice into disrepute.

[45] In any event and moreover, now that we do have the benefit of a constitutional environment in which all law is to be interpreted and applied, there can be little doubt that the test for scandalizing, namely that one has to ask what the likely consequence of the utterance was, will not lightly result in a finding that the crime of scandalizing the court has been committed. Having regard to the founding constitutional values of human dignity, freedom and equality, and more pertinently the emphasis on accountability, responsiveness and openness in government, the scope for a conviction on this particular charge must be narrow indeed if the right to freedom of expression is afforded its appropriate protection. The threshold for a conviction on a charge of scandalizing the court is now even higher than before the superimposition of constitutional values on common-law principles; and prosecutions are likely to be instituted only in clear cases of impeachment of judicial integrity. It is a public injury, not a private delict; and its sole aim is to preserve the capacity of the Judiciary to fulfil its role under the Constitution. Scandalizing the court is not concerned with the self-esteem, or even the reputation, of Judges as individuals, although that does not mean that conduct or language targeting specific individual judicial officers is immune. Ultimately the test is whether the offending conduct, viewed contextually, really was likely to damage the administration of justice.

[46] It would be unwise, if not impossible, to attempt to circumscribe what language and/ or conduct would constitute scandalizing the court. Virtually the only prediction that can safely be made about human affairs, is that none can safely be made. The variety of circumstances that could arise, is literally infinite and each case will have to be judged in the context  of its own peculiar circumstances: what was said or done; what its meaning and import were or where it happened; to whom it was directed; at whom or what it was aimed; what triggered the action; what the underlying motivating factors were; who witnessed it; who witnessed it; what effect, if any, it had on such audience; what the consequences were or were likely to have been”.

6 Contempt in facie curiae

6.1 Contempt in facie curiae is committed when a person who is in court insults the presiding judicial officer or otherwise misbehaves in a manner calculated to violate the dignity of the court or judicial officer while the court is engaged in its proceedings or, as it is sometimes said, ”in open court”.

S v Magerman 1960 (1) SA 184 (O)[3]

R v Butelezi 1960 (1) SA 284 (N)[4]

6.2. The acts of swearing at the magistrate and laughing at a magistrate have been held to constitute the offence of contempt in facie curiae.

S v Ntsane 1982 (3) SA 467 (T)[5]

S v Poswa 1986 (1) 215 (NC)[6]

6.3. The crime of contempt in facie curiae exists and is essential in order to uphold the dignity and authority of the court.

S v Silber 1952 (2) SA 475 (A)[7]

S v Nel 1991 (1) SA 730 (A)[8]

6.4. In order to ascertain whether an accused had the necessary intention his words must be considered in the context in which they were employed.

S v Van Staden 1973 (1) SA 70 (SWA)

6.5. The offence of contempt in facie curiae must occur in the presence of the court. The court in the matter of S v Mbaba 2002 (1) SACR 43 (ECD) at 49 b – c found that even though the accused was warned the day before to be in court, his absence in court did not constitute contempt in facie curiae. The court held that the magistrate should have dealt with the accused’s conduct as an instance of contempt of court ex facie curiae and to have prosecuted the accused in the ordinary course. This was because there clearly was a dispute of fact.

7 While there is case law to the effect that courts should be supported in their quest to uphold the dignity of a court, (S v Mitchell supra at 185g) the other side of the coin is certainly that courts should guard against being unduly zealous in doing so.

7.1 The Constitutional Court emphasized in the Mamabolo case supra (at paras 54 – 56) how unsatisfactory the summary procedure is in a number of material respects, that it is irreconcilable with the standards of fairness called for by section 35(3) of the Constitution and that it should be reserved for the most exceptional cases only.

The Court then remarked (at para 5.9) that Justice would have been better served if the presiding officer had rather reported the matter to the Director of Public Prosecutions to deal with.

See S v Mbaba supra at 49 c – d for similar sentiments

8 Having regard to the facts that:

• This was a once-off occurrence triggered by the third postponement of a relatively insignificant case;

• The conduct was clearly not aimed at the presiding officer or the court as such;

• The accused was immediately repentant and apologized profusely and repeatedly;

• The conduct had no effect on any court proceedings or on the capacity of the judiciary to fulfil its role;

• The court was not in session when the conduct occurred, there was therefore no need for swift intervention (Mamabolo, at para 52);

• The conduct was the result of frustration with the repeated postponement of the case;

• The court’s findings that there is no justification for the conduct is, at the very least, questionable;

• The fairness of the proceedings is likewise questionable, as the presiding officer had even before the beginning of the enquiry suggested to the prosecutor that he should apply that the accused’s bail be cancelled and also made comments beforehand giving the impression that he had pre-judged the matter.

• The offending conduct was not really likely to damage the administration of justice.

9 It is therefore respectfully submitted that the utterance of the accused in the present matter does not constitute contempt in facie curiae as it did not occur in the presence of the court. Further, the words and actions of the accused did not bring the administration of justice by or in the courts into disrespect and disrepute. Due to the factual disputes this matter should much rather have been left to be dealt with ex facie curiae.

Lastly, in terms of Section 108(2) of the Magistrate’s Court Act 32 of 1944 a statement should have been made by the magistrate which should be submitted to the reviewing judge and a copy thereof to the accused. This was not done in the present instance.

S v Mitchell, supra, at 186e – 187a.”

[16] Accordingly, the finding and sentence must indeed be set aside. This case is an egregious example of both a judicial officer and a prosecutor being dangerously ignorant of the relevant law and approaching an incident of relative unimportance in a wholly inappropriate manner, ostensibly because they took umbrage at an exchange between an Accused and a Court Orderly, the exact facts about which incident, remaining uncertain. In the manner they went about the matter they have achieved what Meiring was accused of doing; ie bringing the courts into disrepute. Mature persons do not approve of foul language being used, especially in any formal setting. However, the reality of life is that people who experience exasperation will spontaneously use swear words. An overreaction is unwarranted.

[17] Appropriate steps should be taken by both the National Prosecuting Authority and the Magistrates’ Commission to educate officers of the Court in the scope of the Court’s powers when unseemly behaviour occurs in and about a court.

 

Order

[18] (1) The finding and sentence are reviewed and set aside.

(2) The fine paid by the accused shall be refunded within 30 days of the date of this judgment, and if not paid within that period shall be paid with interest at the prescribed rate of interest a tempore mora until date of payment.

(3) The judgment is referred to the National Director of Public Prosecutions and to the Magistrates’ Commission for the taking of appropriate steps.

 

 

 

_______________________________

 SUTHERLAND J

 

I agree.

 

_______________________________

MUDAU J

 

Date of Judgment:   7 November 2018

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