CONTEMPT OF COURT – WHAT CONSTITUTES

S v SAMUELS 2016 (2) SACR 298 (WCC)

 

Contempt of court — What constitutes — Court order disobeyed — Order evicting accused from informal dwelling on state land — Accused pleading guilty but, when questioned under s 112(1)(b) of CPA, answered that she had nowhere else to go — Accused convicted on plea without any evidence to gainsay her statement — Plea ought to have been changed to not guilty, given clear doubt as to whether she had intention to deliberately and mala fide disobey order — Criminal Procedure Act 51 of 1977, ss 112(1)(b) and 113.

Contempt of court — Sentence — Suspended sentence — Conditions of suspension — Accused disobeying court order evicting her from informal dwelling on state land — Sentence of imprisonment imposed suspended on condition that vacate premises within 14 days — Accused’s contention that she had nowhere else to go ignored — Condition violated s 26(3) of Constitution which required proper judicial enquiry into circumstances and consequences of eviction.

              

The appellant, a single mother of four children, was convicted as an unrepresented accused in a magistrates’ court, of contempt of court, in that she had failed to comply with a High Court order evicting her from an informal dwelling erected on state land at a place known as the Sloot. She was sentenced to 3 months’ imprisonment suspended for 3 years on condition inter alia that she vacate the premises within 14 days. She appealed against both the conviction and sentence. She pleaded guilty at her trial and when asked where precisely she lived, she said that it was alongside the Sloot but not on or above the Sloot. When asked whether she had received a notice from the sheriff to vacate the premises, she answered that she understood that she had to leave but that she had nowhere else to go. The court appeared to accept her plea and convicted and sentenced her. On appeal,

Held, that the magistrate ought to have invoked the provisions of s 113 of the Criminal Procedure Act 51 of 1977 (the CPA). The appellant’s answer to the question as to where she lived made it clear that she might not have been resident in the area covered by the widely worded interdict that was alleged to have been breached. Furthermore, her answer regarding receipt of the eviction notice indicated that she neither understood nor intended to commit contempt of court.

Held, further, that the test as to whether disobedience of a court order constituted contempt was whether the breach had been committed deliberately and mala fide. In the circumstances where the appellant alleged that she had nowhere else to go, and no evidence was placed before the trial court to contest her statement, the court ought to have been in doubt as to whether she had the necessary intention to deliberately and in bad faith disobey the court order.

Held, further, that the condition of the suspension of the appellant’s sentence, that she remove and vacate her informal dwelling, was inconsistent with s 26(3) of the Constitution, which provided that no one could be evicted from their home without an order of court made after considering all relevant circumstances. In effect, the sentence compelled her to choose between homelessness and imprisonment, and this was imposed without any judicial enquiry into her personal circumstances, including the rights and needs of her children, the consequences of eviction or the availability of suitable alternative accommodation. The appeal against the conviction and sentence was upheld and both conviction and sentence were set aside. The matter was remitted to the magistrates’ court to ensure that the provisions of s 113 of the CPA were complied with.

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