HIGH COURT OF LESOTHO
MAGISTRATE Mr Murenzi 1st RESPONDENT
GENERAL 2nd RESPONDENT
by the Honourable Mr Justice S.N. Peete on the 3rd November, 2000.
applicant is an attorney of this court and one of the most senior
members of the side-bar and the court has been informed that he has
also once occupied the senior position on the bench as a Senior
record of the criminal proceedings Rex vs Machine Molepa &
another TY CC
indicates that the applicant appeared as the attorney of record
representing the accused person and the first respondent presided.
This criminal trial effectively started on the 21st April 1999. It is
common cause that during the course of the trial
applicant was on some days not available due to some court
engagements in the High Court and elsewhere. The record shows that on
the 28th June 2000 the matter was formally postponed to the 20th July
2000 the applicant having written a letter to the effect that he was
occupied in the High Court. The postponement resulted in the writing
of a letter by applicant on the 21st September 2000.
matter is set down for to-morrow 22nd /9/00, regardless and without
informing me. I am still in the High Court from 19-22/9/2000 and
cannot possibly come.
aware what is left is the defence. (CRJ/T/80/94 -Murder Qacha's nek
matter). You have passed to client very nasty and irresponsible
remarks about me to the extent you will proceed if I don't turn up. I
have brought this to the attention of the Chief Magistrate and the
Registrar of the High Court. If you feel you have to proceed I have
instructed client not say anything and you proceed the way you want,
if this is the type of justice you administer despite your oath, if
ever you took one.
were co-operative I would ask for postponement until the 27/9/00.I
can assure if you do proceed I shall take a very strong action
against you. Mind you are a foreigner even if you have applied for
residence. There (are) several Basotho lawyers whom you have taken
their places. WHY? only you and perhaps I know.
never had any clash with any Magistrate since I started practice in
1978. You may (be) the first and perhaps the last one.
The record then reads:-
27-09-2000 before his Worship Mr C.P. Murenzi.
Court: Mr Monyako, before the court proceeds with the part-heard
case at hand, would you please address the court in regard to your
recent correspondence letter dated 21-09-2000 and show cause why you
should not be held in contempt of this Honourable court ex facie
Mr Monyako: Your Worship, the said letter was written to the
Magistrate and not to the court. It is not open to the court.
Court: Should I ask my court interpreter to read to the court and
you substantiate it accordingly or else the part-heard would not
proceed until you have purged this contemptuous correspondence.
Mr Monyako: Wait a minute I am going away. 1 am standing down as a
counsel for the accused.
Mr Monyako shouts in court stands up and runs away.
`Mr Monyako you are in contempt of court in facie curiae.
Order: To be committed summarily to custody for a period of one
remanded to 27-10-2000 for set down of the case. Case to proceed
before me with the defence counsel Mr Monyako only if he purges his
adviced to seek another legal representative if Mr Monyako insists on
standing down. They can decide either to appear in defence in person
will give a hearing date on 27-10-2000." The following are
reasons for committal.
basis of punishment for contempt of court lies in the interest of the
public as distinct from the protection of any particular injured
Judge or Judges.
Judicial Officer duly appointed, it is entirely my absolute sacred
responsibility to protect and uphold the honour, dignity and
authority accorded to the courts of law. This duly is in the interest
of the public.
to the late honourable Chief Justice Mofokeng, it is the duty of the
magistrate to preserve his judicial integrity.
preserving the honour and dignity of the court, the Judicial Officer
possesses a formidable weapon in the nature of contempt of court.
to Synman contempt of court in facie curiae is committed when a
person insults a court or judicial officer or otherwise misbehaves in
a manner calculated to violate the dignity of the court or judicial
officer whilst is engaged in its proceedings or open court.
may summarily punish the offender after informing him of the
misconduct allegedly constituting the offence.
deVilliers in the "The Roman and Roman Dutch Law of Injuries
defines contempt of court as –
"any act or statement that in disrespectful towards a court of
law or the members of such court acting in the capacity as such, it
includes shouting at magistrate, conducting case under influence of
liquor, shouting in court and swearing at the magistrate."
background Mr Monyako was in contempt in facie curiae in that he was
asked by the court to elucidate his correspondence which was in the
eyes of the court contemptuous. He thus had to comply or decline in a
manner that was not disrespectful to the court.
Monyako as the record discloses violently stood up, shouted that he
is standing down and packed his bags and walked out of a court in
nothing to do other than to stop him and commit him summarily for
such a contempt by an experienced officer of the court."
28th September 2000 at about 4.45pm appeared in my chambers Advocate
Moruthoane without papers urgently informing the court that Mr
Monyako, the now applicant, has been committed to imprisonment at
T.Y. Having heard Mr Moruthoane I ordered as follows:
ALEXIS MONYAKO be released on his own recognizances with immediate
effect pending review of the decision to imprison him.
said TSOTANG ALEXIS MONYAKO appears before this court on the 28th
September 2000 before 12.00 noon."
Section 109 of the Criminal Procedure and Evidence Act No.9 1981 as
"Subject to section 103, the High Court may, at any stage of any
proceedings taken in any court in respect of an offence admit the
accused to bail".
ex parte application was made by Advocate Fosa on the 3rd October
2000 before my senior Brother Molai J. who ordered that:-
A Rule Nisi do hereby issue and returnable on the 16th day of
October, 2000 at 0930 hrs in the forenoon calling upon the
Respondents to show cause if any, why:-
normal periods of service be not dispensed with due to the urgency
of this matter.
Respondent shall not dispatch, within fourteen (14) days of his
receipt of these papers, the record of proceeding under CR77/98
together with the letter dated written to him by the Applicant, for
the decision to imprison Applicant to be corrected, reviewed and set
aside as irregular.
of the said decision shall not be stayed pending finalisation of
Respondent shall not be ordered to pay the costs of this
shall not be granted such further and/or alternative relieve. 2.
That prayers 1 (a) and (b) operate with immediate effect as an
interim order and the supporting motion papers were duly served upon
the TY Magistrate Court and on the 2nd respondent on the 3rd and 5th
October 2000 respectively. By the return date of the 16th October
2000 the respondents had not
their intention to oppose the application. On the 16th October 2000,
the rule was again extended and matter postponed to the 23rd October
2000. On the 23rd October 2000 the rule was again extended to the
25th October 2000 and matter postponed thereto for hearing.
matter was ultimately heard Mr Nathane appeared on behalf of the
applicant and there was no appearance for the respondents. Mr Nathane
was in my view entitled, without even presenting any argument, to
have moved that the rule nisi be confirmed because it was not being
opposed (see Herbstein & Van Winsen - The Civil Practice of the
Supreme Court of South Africa 4th Ed p. 381). With the leave of
Court, Mr Nathane proceeded to submit as follows:-
substance the committal to imprisonment was based upon the conduct of
the applicant in curiae facie - i.e. his adamnant refusal to read the
letter in open court, his shouting in court and running out of the
court-room. Mr Nathane submitted that the conduct of the applicant on
that day should not be looked at in isolation because the element of
intention was of paramount importance and that in view of the nature
and wording of the letter of the 21-9-2000 the matter should have
been treated as ex facie curiae so that a proper charge sheet should
have been drafted and the letter annexed. Instead an ex facie curiae
conduct was treated in summarily in a manner which precipitated the
outburst of tempers resulting in the committal for contempt. The case
Rex vs Hawkey - 1960 (1) SA 70 is here relevant. Its headnote reads:-
"The court in a proper case, when an obvious act of contempt of
court is committed in its presence, may summarily fine and punish the
offender without conducting, as it were, a minor trial to satisfy
there was a contempt of court. But there are cases where the action
of the person concerned may not be so unequivocal as to justify the
assumption that the person undoubtedly intended to be contemptuous:
and in such cases the audi alteram partem rule should be observed;
and, before the court summarily convicts the person of contempt of
court, that person should be given some opportunity of making an
explanation and of apologising. It does not necessarily follow that
the court would accept that explanation or accept the apology. An
apology grudgingly given may even aggravate the contempt. But in
cases when it cannot be said with certainty that the person concerned
had been openly contumacious, he ought to be given some opportunity
of making an explanation before being summarily punished."
The case of S. v. Ntsanc - 1982 (3) SA 467 (shouting in or at court)
cites for the definition of contempt of court "The Roman and
Roman Dutch Law of Injuries"
Mellius de Villiers which states:-
"Contempt of court then in this sense (in facie curiae) may be
adequately defined as an injury committed against a person or body
occupying a public judicial office by which injury the dignity and
respect which is due to such office or its authority in the
administration of justice, is intentionally violated" - (my
on the circumstances, the presiding officer should take immediate
action after the commission of any contemptuous act. See S. v. Poswa
- 1986 (1) SA 215 (laughing at or in court contemptuously). Mr
Nathane submitted that looked at holistically the conduct complained
about suggests an emotional outburst rather than any intentional or
deliberate attempt to disregard the order of the Court. Although the
terms "wilful" and "deliberate" are the terms
usually employed by the courts, this
detract from the general rule that intent may also be present in the
form of dolus eventualis. (Snyman -Criminal Law 3rd Ed - p. 314).
As it has
once been said, no contrast should be made between the decorum of
proceedings in the magistrates' courts and in the High Court
"........Every judicial officer in the exercise of his functions
is entitled to the same courtesy and respect from those present in
his court whether such officer be Judge, Magistrate or other judicial
functionary and magistrates and others presiding in inferior courts
have a duty to maintain the decorum of the proceedings in their
courts and where necessary for such purpose, exercise the power which
the law affords them" per Ramsbottom J. in R. v. Rosentein 1943
TPD 65 at 70.
Nathane stressed the fact that on that particular day tempers in fact
rose quite high and out of proportion and in this volatile
atmosphere, the applicant could not have entertained the intention to
injure the dignity of the court. He submits that since the conduct
was directly linked to the letter written ex facie curiae, the
applicant ought to have been given opportunity to be heard. Mr
Nathane submits that - besides disobeying the order of court to read
the letter, the applicant did not utter any insolent words; he did
however in the heat of the moment, perhaps shouted, packed his bags
and bolted from the court-room
(supra, p 315) aptly puts it
"If contempt of court in facie curiae is committed, a court may
summarily convict and punish the wrongdoer. This power to punish
summarily for contempt is essential for a court to uphold its dignity
and authority (Silber 1972 (2) SA 475); but our courts have sometimes
emphasised that this power is an extremely drastic weapon, which
should not be resorted to lightly but with utmost care and
circumspection........as the hearing is usually charged with an
emotional atmosphere. Trivial contempts are best ignored and
affording the accused an opportunity to apologise against withdrawal
of the charge of contempt may often uphold the dignity of the court
just as well as a conviction for contempt" (Tobias 1966 (1) SA
though has to be said whether Mr Monyako could competently without
leave of the court, withdraw or resign from the case as he purported
to do. According to Herbstein and Van Winsen (supra p.228) an officer
of the court may renounce his mandate only if he has good reason for
doing so-Voet 3.3.22. The resignation purportedly made by the
applicant was in fact a demonstration of protest and part of the
continuing conduct in court. It cannot be judged separatim.
all and having considered the circumstances of this particular case,
I confirm the rule nisi firstly because the respondents have decided
not to file their opposition and secondly because I am not convinced
that the applicant in the charged atmosphere then existing in court,
had wilfully and deliberately flouted the authority of the court.
would wish to express the grave concern over the circumstances of
this case. The continuous and endless postponements of cases cause
delays and the role players
officers, prosecutors, defence counsel, accused persons and witnesses
are often at their tethers' end and everyone's patience, courtesy and
decorum are often tested. Committal proceedings should be a last
resort after all civilized exhortations have proved fruitless.
Thirdly, I am of the view that in exercising its drastic power to
commit for contempt, the court should always bear in mind the
provisions of the Constitution - Section 12 (2) (c) and (d) which
provide that a person facing a criminal charge must be given adequate
time and facilities for the preparation of his defence, and the he be
permitted to defend himself before the court in person or by a legal
representative of his own choice.
confirming the rule, this court must not be taken in anyway as
deciding upon the civility of the language used in the letter written
by the applicant on the 21st September 2000.
Applicant : Mr Nathane
Respondents : No appearance
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