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5 representing the Attorney-General told us that having regard to the facts of this case and the available judicial authorities, she was unable to support the conviction and sentence recorded against the appellant by the lower court. I must say at once that I am in agreement with her.
After this the hearing was again postponed to 2 p.m. When the Court reconvened at that time Mr. Rugwaro was then present in Court. The record then shows as follows:
"Court: Before I proceed Mr. Rugwaro can you show
cause why you should not be punished for
contempt of court for coming late and
delaying the court hearing?
Mr. Rugwaro: My Lord I stay in Lobatse I had a breakdown
3 between Lobatse and Kanye at a place called Molapowabojang and I had to wave down lifts. I only got here at 10.30, it was due to the breakdown. Court: When did you arrive at Jwaneng? Mr. Rugwaro: At 10.30 a.m. I was not aware where the
Court was going to be held. I went to the District Commissioner's Office and proceeded to the Magistrate Court. I then came by your Secretary who then advised me where the Court was sitting and in the circumstances I wish to extend my apologies for these reasons. Court: Mr. Rugwaro that is not satisfactory. In the first place the fact that you did not know where the Court was going to be held indicates negligence: once an officer of the Court is informed that he is to appear in court, extra precautions should be taken. You see a Court of Law is not a cocktail party
where you can be late for an hour or 30 minutes and you can casually apologise. Now we have lost time, you ought to have been here much earlier and you ought to have allowed a lot of time to ensure that you are at the place on time. I find you guilty of contempt and I am fining you personally PI,000 to be paid on 6th November 1995, if
4 not you will be detained for 6 days."
It is against the conviction and sentence of Mr. Rugwaro that he has filed this appeal. Hereafter I shall refer to him simply as "the appellant". There is nothing on record to indicate
whether Ms. Solomon paid the fine imposed on her or whether she went to prison although at the hearing of this appeal we were told
that she had paid the fine. And although she has not filed an appeal to this Court, much as I would have wished to consider this appeal without reference to her, I find I am unable to do so without some such reference.
I have no doubt that the learned Chief Justice was correct when he said that a Court of Law is not a cocktail party to which an invitee
can go to at his convenience. And I believe the learned Chief Justice had at the back of his mind what this Court has sometimes complained of, namely, some counsel coming late to court or failing to come to court at all to present their clients' cases. All such conduct must be deprecated, and reported to appropriate bodies for disciplinary proceedings. By this I must not be taken as saying that Counsel who fails to obey an order of a Court to be present in a court can never be held in contempt; but as I will show later extreme caution should be taken and proof of deliberate flouting of the order must be shown to justify the extreme procedure of summary conviction of counsel for contempt.
When this appeal was called before us for argument, Mrs. Dambe,
As is clear on the record both Ms. Solomon and the appellant at different times told the court that they did not know the venue where the Court was sitting. There is no evidence on record that where the court was sitting on that day was the regular venue for the sitting of the High Court at Jwaneng. And there is nothing on the record to show that the notice of trial indicated the precise venue of the sitting of the court. Here I must say that I agree with the learned Chief Justice that both counsel had the duty to find out where the court was going to sit, but it cannot
be held against them that they believed that the court would sit at the District Commissioner's office or at the Magistrate's Court building. It was therefore not surprising that both Counsel went to these same two venues where they thought that the court might sit. It was at the old Magistrate's Court that the appellant was directed to the proper venue by the Chief Justice's Secretary where the Court was sitting. There was no evidence to contradict these statements made at the Bar by both Counsel nor was there any evidence in contradiction of the appellant's statement that he had a car breakdown at a particular point which he mentioned also in his statement from the Bar. Finally on this point there is no indication on the record that the two counsel habitually came late to that court, or to any other court in this
I agree. I agree.
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7 with the court process. At this juncture I would like to make reference to the case of IZUORA vs. R. [1953] 1 All ER 827; (1953) 13 WACA 313. In that case a barrister who was appearing in a divorce case in the Supreme Court of Nigeria was absent from court on the day on which judgment was to be given, permission to be absent, which had been previously granted by the judge, having been withdrawn. He was summoned to attend the Supreme Court where he was sentenced to a fine of
10 or to go to prison for two months for contempt of court. His appeal to the West African Court of Appeal having been struck out, he then appealed to the Privy Council.
It was held that while an act of discourtesy may amount to contempt of court, yet summary punishment should be used sparingly. The appellant's conduct was clearly discourteous and may have been in dereliction of his duty to his client, but it did not amount to contempt of court. In delivering the advice of the Privy Council, Lord Tucker quoted with approval the following passage from another judgment of the Privy Council in PARASHURAM DETARAM SHAMDASAMI v. KING-EMPEROR [1945] AC 264, at page 270, per Lord Goddard thus:
"Their Lordships would once again emphasise what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which the court must of necessity
8 possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended."
Lord Tucker then went on to re-emphasise, at page 830 of the Report, that "it is not every act of discourtesy to the court by counsel that amounts to contempt, nor is conduct which involves a breach by counsel of his duty to his client necessarily in this category."
However one looks at the facts of the present case, one cannot see how the conduct of the appellant can be said to come within that level of discourtesy - even his late arrival at the court despite his explanations therefor amounted to discourtesy -deserving of summary punishment as contempt of court. For all the reasons herein given, I hereby allow the appeal against both conviction and sentence in this case. Counsel informed me that the appellant has paid the fine imposed. That should be refunded to him.
Delivered in open court this 19th day of July, 1996.
T.A. AGUDA JUDGE OF APPEAL
W.H.R. SCHREINER JUDGE OF APPEAL
G.G. HOEXTER JUDGE OF APPEAL
URL: http://www.saflii.org/bw/cases/BWCA/1996/46.html
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