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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
SPECIAL REVIEW JUDGMENT
Case No: CR 28/2018
In the matter between:
THE STATE
v
JOEL TJOMBE ACCUSED
[HIGH COURT REVIEW CASE NO: 541/2018]
Neutral citation: S v Tjombe (CR 28/2018) [2018] NAHCMD 96 (13 April 2018)
Coram:SIBOLEKA J AND SALIONGA AJ
Delivered on: 13 April 2018
Flynote:Criminal law: A court in session is competent to summarily punish any person in attendance who willfully interrupts or misbehaves during the proceedings. These powers are a mechanism incorporated in section 108(1) of the Magistrates Court Act 32 of 1944 aimed at empowering the court to maintain law and order and to protect its reputation.
Summary:A three times request by the trial Court to the accused, a witness on the matter, that he should leave the Court room and stay outside until he is called in was embarrassingly ignored. This resulted in him being summarily convicted for Contempt of Court and punished accordingly.
Held: The conduct of the trial Court is appropriate to protect its dignity.
Held: Conviction confirmed and the sentence reduced accordingly.
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ORDER
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- The conviction is confirmed.
- The sentence of: N$1 000 (one thousand Namibia Dollars) or in default of payment 3 (three) months imprisonment is substituted with the following sentence:
- One hundred Namibian Dollars (N$100) or in default of payment three (3) months imprisonment.
- If the fine has already been paid the amount of money in excess of the amount stipulated in the sentence by this Court should be paid back to the accused: Chief Inspector Mathe with immediate effect.
- The sentence is antedated: 12 March 2018.
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REVIEW JUDGMENT
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SIBOLEKA J (SALIONGA AJ concurring):
[1]This matter comes before me on special review. The covering letter of the Divisional Magistrate, Otjiwarongo reads:
‘RE: SPECIAL REVIEW: STATE VS JOEL TJOMBE KRX-CRM 200/2017
May the attached record of proceedings please be placed before a Judge of the High Court on special review with the following comments:
- A state witness Chief Inspector Mathe was convicted of contempt of court in the above matter on the 12th of March 2018 by the District Court sitting at Khorixas and sentenced to a fine of N$1 000 (one thousand Namibian Dollars) or in default of payment 3 (three) months imprisonment. The witness has since paid the fine.
- It would appear from the record that the conviction was for contempt in facie curiae as opposed to contempt ex facie curiae which makes the provisions of Section 108 of the Magistrates’ Courts Act 32/1944 applicable to this case.
- I am not satisfied that the proceedings are in accordance with justice.
- Having purportedly acted in terms of Section 108 and contrary to
the provisions of the Act the magistrate failed to transmit the case record on review to the Registrar of the High Court in terms of subsection 2 of the Section. Instead the court erroneously advised the witness that the sentence is not reviewable.
3.2 It is true that in the ordinary course the fine imposed is not review-
able on account of the position of the particular magistrate who has more than 7 (seven) years experience on the bench. However, the sentence imposed in this case is subject to automatic review by virtue of Section 108(2) of Act 32/1944 since the court would have exercised the powers of prosecutor, jury and judge at the same time.
3.3 None of the provisions of section 108 were complied with. There is
no evidence on record of the witness having insulted the judicial officer, interrupted the proceedings or misbehaved himself which could sustain the conviction. It is noteworthy that the witness was not a party to the proceedings. As appears on record the magistrate does not explain or pronounce himself as to why the witness must leave the courtroom bearing in mind that this is an open court. When the magistrate said to the witness that he should leave before he is called in he was referring to another case in which the witness had been subpoenaed to testify.
3.4 The maximum monetary penalty provided under Section 108(1) is a fine not exceeding N$100 (one hundred Namibian Dollars) which means that the fine imposed in this case is incompetent and not permissible according to law.
3.5 In my humble view both the conviction and the sentence should be set aside. I stand guided.’
[2]On this matter a prosecution witness Chief Insp. Mathe was sentenced to N$1 000 or in default of payment three (3) months imprisonment for contempt of court.
[3]The main matter was postponed to 12 March 2018 for continuation of trial in the Court a quo. I will now quote verbatim the brief proceedings that took place on the said date that led to this special review now before me. It is as follows:
On 12 March 2018 –
‘Crt: Sir can you leave the court room before you are called in.
Acc: (Refuses to leave).
Crt: Sir in the Grey Jacket and Blue shirt, I am talking to you, leave the court room before you are called.
Acc: (Refuses to leave).
Crt: Sir, leave the court room, until you are called in?
Acc: I am not leaving.
Crt: Sir non-compliance with a court order amounts to contemptuous conduct, leave the court room.
Acc: (Refuses to leave).
Crt: Sir come to the accused dock, you are now in contempt of court.
Acc: (Refuses to come to the accused dock).
Crt: Sgt. Karunga and Sgt. Shiwedha bring the accused to the accused dock.
Sgt. Shiwedha: Chief Inspector Mathe is my senior and I have to call Chief Nuuyoma.
Crt: Call Chief Inspector Nuuyoma.
Sgt. Shiwedha: Chief Inspector Nuuyoma is before court.
Crt: Chief Inspector Nuuyoma, the court orderlies informed this court that they cannot force Chief Inspector Mathe to the accused dock because they are juniors to him. I request you to talk to him to come to the accused dock otherwise I will sentence him where he sits in the gallery.
Chief Inspector Nuuyoma: Colleague we on the same rank. The court has made an order go to the accused dock.
Chief Inspector Mathe: (comes to the accused dock).
Crt: The court has found you guilty of contempt of court for non-compliance with a court order. Your non-compliance resulted from refusing to leave the court room upon request on more than 3 occasions.
Crt: Accused you have the opportunity to address the court on mitigation. You may do that giving evidence under oath or by calling witnesses to testify under oath. If you choose to do so, you will be subjected to cross examination by the state and the court may also put questions to you for clarity which also applies to your witnesses. You may also speak from where you stand and address the court. You must however understand that evidence under oath do carry more weight than a mere address. Do you understand?
Acc: I am not giving mitigation until you explain to me what I did.
Crt: Your non-compliance with the court order to leave the court room on more than 3 occasions is why you have been convicted of contempt of court.
Acc: Why was I the only pin-pointed to leave the court.
Crt: Sir, you have been convicted already. Are you giving mitigation or not?
Acc: I am not giving mitigation.
Sentence: N$1 000 or 3 months imprisonment. Sentence is not reviewable.
Acc: You have made me rich. I will not pay the N$1 000. I will serve the 3 months. You see how poor I am, you have made me rich.’ My own underlining.
[4]Contempt of Court section 108 of the Magistrate’s Court Act 32 of 1944 relates to contempt of Court taking place during Court proceeding and it reads:
‘108 Custody and punishment for contempt of court
(1) If any person, whether in custody or not, willfully insults a judicial officer during his sitting or a clerk or messenger or other officer during his attendance at such sitting, or willfully 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 sub-section (3) of section five provided) be liable to be 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 sub-section the word “court” includes a preparatory examination held under the law relating to criminal procedure. My own underlining.
(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.’ My own underlining.
[5]The trial court in session requested the Chief Inspector three times to go outside and wait there before he is called in. This is a normal court practice to all would be witnesses on the matter that is before court. The court below was overwhelmed by the continued disregard of this purely procedural request and if it failed to summarily punish the accused the way it did, its image would have been irreparably damaged.
[6]We have an open court system in our country that allows members of the public free attendance with a few exceptions like where the proceedings are held in camera when under aged suspects are in the dock going on trial or giving evidence. The accused’s conduct was very embarrassing and if it was left to go unpunished it had the potential to place our justice system into serious disrepute.
[7]It is the drastic nature of the word ‘summarily’ in section 108(1) that obligates the Magistrate who invokes the section to urgently send the matter for special review. The Divisional Magistrate’s remark is correct and trial courts failure is regrettable. It is on this basis that I find the conviction to be in order.
[8]As regards the sentence of the trial Court it is clear from the penalty provision in section 108(1) of the Magistrates Court Act 32 of 1944 that the penalty provision has been exceeded thereby inviting interference from this court.
[9]In the result I make the following order.
1.The conviction is confirmed.
2.The sentence of: N$1 000 (one thousand Namibian Dollars) or in default of payment 3 (three) months imprisonment is substituted with the following sentence:
3.One hundred Namibian Dollars (N$100) or in default of payment three (3) months imprisonment.
4.If the fine has already been paid the amount of money in excess of the amount stipulated in the sentence by this Court should be paid back to the accused: Chief Inspector Mathe with immediate effect.
5.The sentence is antedated: 12 March 2018.
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- M. SIBOLEKA
Judge
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J. T. SALIONGA
Acting Judge