CASE NO.: (P) 1760/2010

IN THE HIGH COURT OF NAMIBIA

THE STATE									PLAINTIFF

and
L SAMARIA									DEFENDANT

(HIGH COURT REVIEW) CASE NO. 1760/2010

BOTES, AJ
				SPECIAL REVIEW JUDGMENT

"Reasons by the presiding magistrate for the case of contempt of court, which includes the statement in terms of Section 108 (2) of the Magistrate Court Act, Act 32 of 1944
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8. The state had no witnesses that could testify in English, or in a language that could be interpreted by the available interpreters.
9. The state refused to close its case, on which the court deemed the state case closed and called the defence case. This was about 12:35, and this is where the cause of this review started.
10. The prosecutor at that point requested for a brief adjournment of the case, saying he would like to visit the toilet. The court then suggested five minutes and the prosecutor confirmed five minutes will be ok. The court adjourned for five minutes.
11. After ten minutes the defence lawyer knocked by my chambers and inquired when the case resumes as five minutes have passed. I said look around for the prosecutor and inform me when the court is ready.
12. At 12:55, after 20 minutes since the adjournment I instructed the court orderly to call the case and it was done and every one else except the prosecutor was in court. The court then adjourned for lunch.
13. At 14:00 the case was called, and the prosecutor was present.
14.Without mentioning anything about the morning's happenings, I called the defence case and section 174 application was launched by the defence.
15. I didn't mention the morning's happenings deliberately, in a hope that the prosecutor will use the opportunity to explain or apologize to the court for his behaviour. This didn't come forward.
16. The prosecutor rose to address the court, starting accusing the court for unprocedurally closing the state case etc., without even informing the court what his address was all about. I had to stop him to ask whether his address is to oppose the section 174 application, on which he said yes, and then he proceeded with his address which is not relevant to the application at hand. The court tried to bring the attention of the prosecutor to the merits of the application, and rather put those arguments in an appeal should the decision goes against the state. The prosecutor refused to budge, which in my view is a continuation of display of contempt for the decision earlier taken by the court.
17. At this point the court gave up and decided to dispense with the address of the prosecutor on the section 174 application, and adjourned the court for ten minutes, and at the resumption of court, the accused was acquitted in terms of section 174.
18. The court then preceded with the contempt of court proceedings against the prosecutor.
19. The contempt of court is based on the fact that the court believes that the prosecutor lied to the court as to the true reasons for requesting a stand down for five minutes, thereby misleading the court. He knew he was not going to the toilet, nor was he planning to return to court after five minutes, and believing him the court adjourned for five minutes, and the prosecutor disappeared.
20. To confirm the above, the prosecutor never even explained at the resumption of the court at 14:00, why he was unable to return to court after five minutes, or show some respect to court and at least apologize.
21. I believe the true reason for the request for the adjournment by the prosecutor and the subsequent disappearance was a reaction to the decision taken by the court not to grant the request for a stand down. The true reason for the request was to frustrate the proceedings because he was dissatisfied with the decision taken against the state. This was also evident from the attitude with which this request was made and with which the submission against the section 174 application was made.
22. The prosecutor was informed of the charge of contempt and responded "no comment". The court proceeded and pronounced the conviction of contempt, and since the prosecutor again responded "no comment" on sentence, proceeded to sentence the prosecutor. The pronouncement of the conviction was erroneously not recorded. This I ascribe to the tensed atmosphere (to me, at least) under which the events took place.

24. This case was supposed to be transmitted to the High Court for review, but got delayed up to this time due to the shortage of typing staff and the fact that I, as the presiding am in Windhoek and therecord have to be couriered over and again between Mariental and Windhoek for checking by the presiding magistrate."

[2] It is trite law that a magistrate's court is a creature of statute and as such has no inherent jurisdiction, and only has the jurisdiction to deal with matters provided for by its statutes, and in terms of such statutes.

[3]     Section 108 of the Act provides as follows:

"108 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 the section five provided) be liable to the 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 subsection theword "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 the a judge in chambers, a statement, certified by such judicial officer to be true and correct, of the grounds and reasons of this proceedings, and shall also furnish to the party committed a copy of such statement."

[4] According to the statement of the learned magistrate, a copy of the reasons was forwarded to the accused.

'Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.'

	(a)	Insults a judicial officer or a clerk or messenger or other officer; or
(b)	wilfully interrupts the proceedings of the court; or
(c) 	otherwise misbehaves himself in court.

[9] Although, the accused did not respond to the questions of the magistrate during the summary inquiry, there is no evidence on record that the accused did not attend to the toilet after the adjournment was requested and granted. The record, in fact, is completely silent as to the movements and the conduct of the accused after the court adjourned and why he only returned to court after the lunch break at 14h00.

[17]   In and as a result of the aforegoing, the following order is made:
1.	The conviction of the accused is set aside, and
2.	The fine imposed, if already paid, must be refunded to Mr L Samaria.

BOTES, AJ

I agree

HOFF J