In the matter between:

and

JUDGMENT

WRAGGE. AJ

The appellant, a seventeen year old minor, was found guilty of contempt of Court after a summarily enquiry held in terms of Section 170(2) of the Criminal Procedure Act 51 of 1977, as amended ("the Act"), and sentenced to a period of 90 days imprisonment without the option of a fine.

The events leading to the appellant's conviction began on 7 June 2006 when he appeared before a magistrate in the Wynberg Magistrate's Court charged with robbery. The appellant, as a minor, was assisted by Brilliance Semente, and represented by Ms Davids. The matter was remanded to 11
July 2006 for further investigation.

The appellant was released in to the care of his guardian in terms of Section 72 (1) and (b) of the Act. Both the appellant and his guardian were warned to appear on the postponed date. On 11 July 2006 the appellant appeared, this time assisted not by Brilliance Semente, but by his cousin, Zola Mbeni. The matter was once again postponed to 2 August 2006 for further investigation. Both the appellant and Mr Mbeni, as his guardian, were warned to appear. On 2 August 2006 neither the appellant nor his guardian appeared. Ms Fick, the appellant's legal representative was present, but advised that she had no instructions. Warrants were authorised for the arrest of both the appellant and Mr Mbeni as his guardian.

On 17 May 2007 the appellant was brought before the magistrate. On this occasion he was not assisted by Mr Mbeni, in respect of whom it appears that the warrant of arrest is yet to be executed, but by Mabubiso Babo. The record shows that the appellant was again represented by Ms Fick. There is no indication in the magistrate's bench notes, however, that Ms Fick played any part in the summarily enquiry proceedings before the magistrate.
It appears from the magistrate's bench notes that the appellant was advised that a summary enquiry regarding his failure to appear in Court would then be held. He was also advised, firstly, that the onus rested upon him to show on a balance of probabilities that his failure was not due to fault on his part, and/or the provisions of Section 67 A of the Act, and, secondly, in order to satisfy the onus he could testify under oath or call witnesses.

The appellant elected to make an unsworn declaration. He advised the magistrate that he had gone to school on that day. The magistrate nonetheless convicted the appellant of having contravened Section 170(1) of the Act.

In mitigation the appellant advised the Court that he was 18 years of age at that time, and was still at school. He advised further that he could not afford to pay a fine. The magistrate sentenced the appellant to imprisonment for a period of 90 days, being the maximum period of imprisonment provided for in Section 170(2) of the Act.

On 25 May 2007 the appellant applied for leave to appeal against both his conviction and sentence, which leave was granted. The appellant was granted bail in an amount of R500. The bail was paid and the appellant was released from custody on 30 May 2007. The appellant had therefore spent 13 days in prison.

It was submitted on behalf of the appellant that for a variety of reasons the appellant's procedural rights had been violated. It was submitted further that in any event the magistrate should have accepted the appellant's explanation for his absence from Court.

The State agreed that the evidence of the guardian, Zola Mbeni, who was warned together with the appellant on 11 July 2006, was essential to the appellant's explanation of why he did not attend court. Without the evidence of the guardian it was impossible for the magistrate properly to have evaluated the appellant's explanation. The guardian who accompanied the appellant at the enquiry was not involved in the enquiry in any way and it appeared that the applicant's legal representative played no part either.

It appears from the bench notes that the appellant could well be regarded as being unrepresented for the purposes of the summarily enquiry. It has also not been possible for the appellant and his legal representatives to obtain reasons from the magistrate as to why he convicted the appellant, because the magistrate in question was acting at the time, and presumably is not contactable.

It is also not evident from the record that the enquiry was conducted in a fair and impartial manner. Without evidence or an explanation from the appellant's guardian, who was present when the appellant was warned to appear on 11 July 2006 it was, in my view, impossible for the magistrate to have made a fair and impartial evaluation of the appellant's explanation for his failure to attend at court.

In my view, therefore, the appeal should succeed and the appellant's conviction and sentence should be set aside.

WRAGGE, AJ

MOOSA, J