Court name
High Court Main Division
Case number
CRIMINAL 5 of 2013
Title

S v Amkheibeb (CRIMINAL 5 of 2013) [2013] NAHCMD 23 (30 January 2013);

Media neutral citation
[2013] NAHCMD 23
Coram
Hoff J
Smuts J













REPUBLIC OF NAMIBIA



IN THE
HIGH COURT OF NAMIBIA






JUDGMENT











Case no: CR 5/2013





IN
THE HIGH COURT OF NAMIBIA






In the matter between:





THE
STATE






and





HAROLD
AMKHEIBEB ACCUSED






(HIGH COURT MAIN DIVISION REVIEW REF
NO.: 1/2013)







Neutral citation: The State v
Amkheibeb (CR 5/2013) [2013] NAHCMD 23 (30 January 2013)





CORAM:
HOFF, J et SMUTS, J






Delivered on: 30 January 2013






Flynote: An
accused should be warned that conduct is to be regarded as contempt
in facie curiae – and that he may be convicted to contempt and
be afforded an opportunity to address the court in that regard before
convicting an accused for such an offence.











ORDER











The conviction of contempt of court
and the sentence of a fine of N$300.00 or 3 months imprisonment are
set aside.











JUDGMENT











SMUTS, J.: [1]
The Magistrate for the district of Grootfontein has submitted this
matter for special review because the accused was convicted of
contempt of court in
facie
curiae
on 9 January
2013. The accused was sentenced to a fine of N$300.00 or 3 months
imprisonment.







[2] When the accused was arraigned on
11 December 2012, he was charged with two counts, namely
housebreaking and attempted housebreaking. He was then asked to enter
his pleas on these charges. He pleaded guilty on both counts but as a
result of his explanations, the presiding Magistrate correctly
entered pleas of not guilty on both counts. The matter was then
postponed.







[3] On its resumption on 9 January
2013, the following occurred at the outset:



Accused:
Your penis your worship, I do not want to be here.



Court:
why are you saying or making those remarks?



Accused:
I don’t know why but I repeat your penis.



Court:
I still caution you please if you are aggrieved on anything. Please
you may address on as different platform. Do you understand?



Accused:
I understand and I repeat that your penis



Court:
Under the present circumstances, the court has no option but for find
the accused guilty of contempt of courts in facie curiae.



PP:
No previous conviction the matter may be finalised.”







[4] After the accused’s rights
concerning mitigation were explained, the accused merely stated:



I’m
40 years old, I’m single, I can’t pay a fine...”



He was then sentenced to a fine of
N$300.00 or 3 months imprisonment for contempt in facie curiae.







[5]
This court
1has
in detail explained the nature and elements of the offence of
contempt of court in facie curiae and set out the procedure to be
followed by courts when encountering the offence. Relevant for
present purposes is the application of the fundamental principle of
audi
alternm parterm
.
A presiding officer should plainly warn the accused that his conduct
may be regarded as contempt and that he may be convicted of the
offence of contempt of court and then afford the accused the
opportunity to address the court in that regard
2.
In this instance the accused was not represented. The need for a full
warning in these terms was all the more required. It would also
appear from the record that the accused made his remarks through an
interpreter. A detailed warning of this kind is also required to
ensure that the presiding officer can be satisfied that the
particular words are those of the accused and afford an opportunity
for an accused to address that aspect
3.







[6] The Magistrate, after establishing
what was said, merely stated:



I
still caution you please if you are aggrieved on anything. Please you
may address on as different platform. Do you understand?”



But the Magistrate did not expressly
warn the accused that he ran the risk of being convicted for contempt
of court, as he should have. That was procedurally required of the
Magistrate. The failure to do so results in the conviction and
sentence being set aside.







[7] The following order is made:



The conviction of contempt of court
and the sentence of a fine of N$300.00 or 3 months imprisonment are
set aside.















____________



DF Smuts



Judge











I agree











____________



E Hoff



Judge







1S
v Paaie 2006(1) NR 250 (HC)




2S
v Paaie supra at 255 B-C; S v Cloete 2006(2) 430 (HC) at 431




3S
v Paaie supra at p 257