Magistrate who detained lawyer for 'disrespect' committed a 'gross irregularity', says judge

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  • A candidate attorney, employed by Legal Aid SA, was detained in court cells in Port Alfred after a magistrate accused her of being disrespectful.
  • The attorney had refused to cross-examine a witness, saying her manager had given her strict instructions not to deal with the matter.  
  • The magistrate told the attorney the court had powers to deal with "people who do not respect the court". 

A candidate attorney, who refused to represent an accused being sentenced for assault, was detained in court cells after a magistrate accused her of being "disrespectful".

In a judgment penned by High Court Judge Judith Roberson, she said the experience must have been "frightening, shocking and humiliating" for the candidate attorney, identified as Ms N December. 

The unnamed magistrate of the Port Alfred Magistrate's Court was found to have committed a "gross irregularity".  

December was in court for a separate matter when the magistrate instructed her to represent the accused being sentenced for assault.  

It is not clear how long December, who is employed by Legal Aid South Africa, was detained, but she was released on the same day.

Judge Roberson reviewed and set aside the proceedings of 29 October 2020, where the magistrate ordered December to be detained and accused her of being disrespectful.  

The matter stems from proceedings in the matter of S v Ndiyana. 

At the time, the prosecutor had placed on record that December was standing in for a Ms Babinya on behalf of the accused, who was convicted of assault with intent to do grievous bodily harm.

The matter was on the roll for sentencing. 

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According to the court document, a doctor was called to testify.

December then informed the court that she had "strict instructions from her manager not to deal with the matter".

She also indicated that a Ms Ngxitho was the attorney dealing with the matter.

She said she was in court to deal with her own part-heard matter and that all other matters were to be postponed.

December indicated that she was not familiar with the matter, adding it would be unethical for her to proceed.

She had also not consulted with the accused.

Her manager had requested her to ask for a postponement.

But, according to the court document, the magistrate who presided over the matter, said the accused pleaded in February 2020 and had been in custody.

The matter had also been postponed several times for legal aid.

The magistrate said it was unfair for the matter to be repeatedly postponed when the accused was in custody.

"All that was required of Ms December, so the magistrate said, was to take instructions from the accused on the nature of the injuries suffered by the complainant," read the judgment.

But December repeatedly said she was subject to the instructions of her manager.

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She refused to cross-examine the doctor, saying if the witness were to be called to testify, she would withdraw as the attorney of record.

"The doctor was then sworn in and Ms December announced that she was withdrawing as attorney of record.

"The magistrate told her [December] that she needed permission to withdraw and could not withdraw without a valid reason for doing so. The magistrate then led the evidence of the doctor and the prosecutor had no questions for the doctor."

Disrespect

When she was called to start the cross-examination, December stated that she had withdrawn as attorney of record.

But the magistrate said she could not withdraw without seeking permission and giving her reasons.

The magistrate then told December to take instructions from the accused on the nature of the complainant's injuries.

"Not unless you are disrespecting me, so that I can take it now. It is instructions on injuries sustained, nothing else, nothing more. Not unless you are disrespecting me.

"So that I can deal with you now," the magistrate was quoted as saying.  

When December refused, the magistrate further said:" I am warning you for the third time. I can take you to the cells if I want, I am warning you for the third time. I am warning you for the third time in the presence of everyone. I am giving you instructions to take instructions on injuries sustained."

She added:

Before I request the police to take you to the cells. I am talking, you stand up when I am talking. I am going to need the court orderlies to assist me to take you to the cell if you do not comply.

December was then taken to the court cells and later brought back to court.

The magistrate then told her what she had done amounted to disrespecting the court.

She also said the court had powers to deal with "people who do not respect the court".

The magistrate later told a senior magistrate that she had erred in invoking the provisions of the Magistrate's Court Act and combining it with a Criminal Procedure Act. 

She later submitted the matter for a review by a judge.

And, in her ruling, Judge Roberson said it seemed the magistrate was "annoyed and frustrated that the trial could not be concluded, and wrongly regarded Ms December's conduct as disrespectful".

Frightening

The judge said, in ordering December's detention, the magistrate came very close to "acting arbitrarily and ultra vires".

"She certainly acted precipitately without the necessary caution required in invoking either of the statutory provisions. At the very least, she committed a gross irregularity in her purported application of either provision. It goes without saying that to deprive a person of their liberty, even for a short period, is an extremely serious matter.

The judge said:

A judicial officer simply cannot order the detention of a person in such a fashion, without having in mind the exact statutory power invoked and without giving the person to be detained an opportunity to address the court in relation to that particular statutory power.


"This was, in my view, a serious invasion of Ms December's right to liberty and dignity," the judge said.

Roberson said the magistrate went even further because, when December was brought back to the courtroom after her detention, the magistrate continued to accuse the lawyer of disrespect.

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