THE HIGH COURT OF SWAZILAND
the matter of:
89 OF THE MAGISTRATE'S COURT ACT
the 4th February this year Mr. M.L.M. Maziya committed Mr B. Nkumane
a public prosecutor to custody for ten days for contempt of court. Mr
Maziya is a Senior Magistrate and at the time of the incident was
presidding over a court at Lavumisa. He made a report to the High
Court under section 89 of the Magistrate's Court Act.
the 19th February, I requested the Director of Public Prosecutions to
indicate whether or not he supported the action taken by the
magistrate in this case. His reply was dated the 19th April and the
file was left for further consideration until my return from leave. I
am indebted to the Director for his careful submissions on the case.
his report the magistrate recited the history of a criminal case in
which two persons were charged with the theft of building materials
in October last year. One of the two accused person having been
released on bail, did not appear before the court on the 17th
December. On the 31th December the magistrate set the matter down for
trial on the 4th February on the basis that if the accused who had
abscondea was not arrested before that date he would proceed with the
trial of the other accused.
Magistrate's statement continues.
the 4th February, we first did a few remands and postponements. Mr
Nkumane (who was prosecuting that day) then called the case in
question. He then handed the docket over to the interpreter (Mr
Ernest Thwala) and said something which I could not hear. 1 however,
took it to mean he was directing Mr Thwala to put the charges. He had
all along been calling the cases without handing the dockets over to
the interpreter. Mr Thwala appeared to be studying the docket. At
that time, I started writing that the charge was being put even
though the interpreter had not yet done so.
I could finish I then asked Mr Thwala why he was not putting the
charge. It's then that Mr Thwala stated that the prosecutor had
infact applied that the charge be withdrawn. Without any further ado
I just cancelled whatever I had written and started writing that the
charge was being withdrawn.
whilst still writing this I immediately recalled that the case had
been set for trial and the Crown had been put on terms. I perused the
record and confirmed it. I then cancelled what I had already written
i.e. that the charge was being withdrawn.
then directed the interpreter to put the charge to the accused
person. At that time Mr Nkumane stood up and loudly applied that the
case be withdrawn. . I asked him why as the matter was supposed to be
for trial. He said if the case were to be proceeded with the present
accused would put all blame- on the shoulders of the other one so as
to secure an acquittal. I told him that this factor had been
considered even in the ealier remand hearing but it was nevertheless
agreed that the case would proceed at all costs. He insisted that it
be withdrawn. It was at that stage that I told him that it was not
proper for him to interfer with my instruction that the plea be
taken. I again directed Mr Thwala to put the charge. Mr Nkumane then
sat down and Thwala put the charge, the accused pleaded not guilty.
then called upon Mr Nkumane to address me and advance stronger
reasons as to why the case should be proceeded with otherwise than by
way of trial. 1 further told him that it's either he advanced such
reasons or led evidence as I was not at all prepared to grant his
application for withdrawal on the basis of the reason he had
my surprise Mr Nkumane remained transfixed in his chair and did not
say anything. I pleaded with him about three if not four time to
respond. He however remained seated and said nothing, much to the
amusement of some of the people sitting in the gallary. At this time
even an attorney of the High Court Mr T. Masina, was present having
just walked in. I paused for a while thinking that the prosecutor
might respond, it availed nothing. I then acquitted the accused
person and ordered that Mr Nkumane be removed from the Court room ana
detained in custody for ten days (10) for contempt of court."
on the same day, Mr Nkumane telephoned the magistrate from Lavumisa
police station and he tendered his profuse apologies for what had
happened. The magistrate accepted the apology and released the
prosecutor on his own recognisance pending the transmission of the
record to the High Court for review.
magistrate went on to indicate his interpretation of section 8S of
the Act. He considered that Mr Nkumane had been guilty of
misbehaviour in that having been informed that the magistrate was not
prepared to have the case dealt with otherwise than my way of trial
as he could not grant the prosecutor's application for withdrawal
unless he advanced convincing reasons, he did not respond in any way.
Despite the pleas of the magistrate, Mr Nkumane remained silent. The
magistrate regarded Mr Nkumane's silence as not only rude but
unethical. The amusment of the gallery at the situation indicated
that the dignity of the court was being undermined. The magistrate
considered that he had not only a right but a duty to discipline the
magistrate considered that Mr Nkumane's decision to remain
"transfixed in his chair" amounted to undiluted contempt.
Mr Nkumane should have stood before the court while the magistrate
was addressing him.
magistrate referred to an earlier incident involving Mr Nkumane and
Mr Nkumane had been rebuked for being late. This led to an
intervention by Mr Maziya who took the opportunity to lecture Mr
Nkumane on the importance of court etiquette and manners.
if any person, whether in custody or not, wilfully insults any
judicial officer during his sitting or any clerk or messenger or
other officer during his attendance at such sitting, or wilfully
interupts the proceedings of the court or otherwise misbehaves
himself in the place where such court is held, he shall, in addition
to his being liable to be removed and detained be liable to
imprisonment for any period not exceeding one month or to pay a fine
not exceeding forty rand for every such offence or, in default of
payment, to such imprisonment.
In any case in which the court commits or fines any person under this
section, the judicial officer shall without delay transmit to the
registrar of the High Court, for consideration and review of the
Judge in chambers, a statement certified by such judicial officer to
be true and correct, of the ground and reasons of his proceedings,
and shall also furnish to the party committed a copy of such
magistrate said that he ordered Mr Nkumane to be removed and
detained. He did not proceed to sentence him to imprisonment or to
impose a fine. As detention could not be for an indefinite period,
the magistrate decided that ten days would be appropriate.
Criminal Procedure & Evidence Act sets out the various
punishments which may be inflicted by the courts. No distinction is
drawn between detention and imprisonment. Section 89 of the
Magistrate's Courts Act does not create a new form of punishment.
Detention in this connection should not be regarded as a punishement
per se. It is incidental to the removal of the offender from the
court. It is analogous to an arrest. As soon as Mr Nkumane was
detained he became liable to the penalties provided after a trial
either before Mr Maziya or another magistrate. If this was contempt
in facie curia, he was still entitled to be heard before sentence was
pronounced. I assume that if Mr Nkumane had been given the
opportunity to do so he would have apologised to the court in the
same terms as he did later on the telephone. That might have been an
end to the matter.
obligation to send a statement to this Court for review only arises
"in any case in which the court commits or fines any person"
under section 89. The file contains no warrant for the commital of Mr
Nkumane to prison. It is not at all clear, in the absence of such
warrant, where he could lawfully be detained.
does not appear either from the record of the proceedings or the
magistrate's statment that Mr Nkumane was given any opportunity of
being heard in his defence or of offering any apology before the
magistrate summarily ordered his arrest and detention. It is clear
that the magistrate regarded this as a punishment for contempt. I do
not consider the procedure followed to be in order. [R. v. Hawkey
1960 (1) S.A 70].
power to punish summarily conferred upon a judicial officer by the
corresponding section of the Magistrates Courts Act of South Africa
(section 108 of Act 32 of 1944) should be used with caution. [ see
R.v. Silber 1952 (2) S.A. 475 at 480].
was rude of Mr Nkumane to remain seated and silent when the
magistrate addressed him.
as the D.P.P. pointed out, the prosecutor had withdrawn the case
against the accused person under section 6 of the Criminal Procedure
& Evidence Act and the proceedings were technically at an end.
The prosecution have this statutory right, which a court would not
interfer with unless the Director or his subordinates were acting
mala fides or in abuse of the process of the Court [Dlamini and
others v. Minister for Justice 1982-86 S.L.R. 367.
think the magistrate was affronted by Mr Nkumane's public
discourtesy. He ought to have warned the gentleman that he would take
the matter further. He would have been justified in complaining to
the D.P.P. about the conduct of his subordinate. But, it was not
necessary to adopt so drastic a course against Mr Nkumane.
am unable to support the action taken by the magistrate. The
conviction for contempt and all its consequences are set aside.