S v Mathoho In Re: Da Silva Pessegueiro v Tshinanga (3773/04) [2005] ZAGPHC 323; 2006 (1) SACR 388 (T) (21 September 2005)

S v Mathoho In Re: Da Silva Pessegueiro v Tshinanga (3773/04) [2005] ZAGPHC 323; 2006 (1) SACR 388 (T) (21 September 2005)

The High Court found that the magistrate failed to follow constitutionally mandated procedures in convicting the accused of contempt of court. The accused was not properly informed of the charge, was not given adequate opportunity to prepare a defence, and was not advised of his right to legal representation. The alleged contempt occurred after the civil matter had been postponed, at which point the magistrate was functus officio and the accused could not have committed contempt in facie curiae. The record did not establish wilful insult or interruption of proceedings. The conviction and sentence were therefore unconstitutional and invalid.

Citation
[2005] ZAGPHC 323
Parties
Applicant: The State; Respondent: Mathoho; Plaintiff: E Da Silva Pessegueiro; Defendant: Calvin Tshinanga
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
21 September 2005
Case Number
3773/04
Procedural Posture
Review Application / High Court Review of Magistrate's Summary Contempt Conviction
Outcome
Conviction and sentence for contempt of court set aside; refund of fine ordered.
Judges
J B Shongwe, L O Bosielo
Legal Topics
Contempt of Court, Summary Procedure, Constitutional Rights of Accused, Magistrates Court Act, Fair Trial Rights
Criminal Law Civil Procedure Contempt of Court Summary Procedure Constitutional Rights of Accused Magistrates Court Act Fair Trial Rights

Case Brief

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Parties

The State

Applicant

Mathoho

Respondent

E Da Silva Pessegueiro

Plaintiff

Calvin Tshinanga

Defendant

Procedural Posture

Review Application / High Court Review of Magistrate's Summary Contempt Conviction

Legal Issues

  1. 1 Whether the presiding officer followed proper procedure in convicting the accused of contempt of court.
  2. 2 Whether the accused was entitled to the rights of an accused person under section 35(3) of the Constitution.
  3. 3 Whether the conduct of the accused constituted contempt in facie curiae under section 108 of the Magistrates' Courts Act.

Ratio Decidendi

The High Court found that the magistrate failed to follow constitutionally mandated procedures in convicting the accused of contempt of court. The accused was not properly informed of the charge, was not given adequate opportunity to prepare a defence, and was not advised of his right to legal representation. The alleged contempt occurred after the civil matter had been postponed, at which point the magistrate was functus officio and the accused could not have committed contempt in facie curiae. The record did not establish wilful insult or interruption of proceedings. The conviction and sentence were therefore unconstitutional and invalid.

Court Disposition

Conviction and sentence for contempt of court set aside; refund of fine ordered.

Orders

  • The conviction and sentence by the magistrate are set aside.
  • The sum of R1000-00 (one thousand rand) must be refunded to the accused.