I. INTRODUCTION
In August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:
(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section 360(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7 March 1999 they had attempted to place aboard an aircraft dangerous goods, namely, various revolvers, pistols, rifles, knives, and ammunition.
(ii) The second was a contravention of section 37(2) of the Law and Order (Maintenance) Act [Chapter 11:07], in that on the same day they were in unlawful possession of arms of war and offensive materials, consisting of a variety of pistols, revolvers, rifles, firearms, ammunition, knives, teargas, and electric shock devices.
The trial, which was protracted, was presided over by ADAM J and assessors, in the High Court, at Harare. Judgment was delivered on 10 September 1999. The three accused were convicted on both Counts. On 13 September 1999, the learned judge sentenced them to six months' imprisonment with labour on the first Count; and, on the second, to twenty-one months' imprisonment with labour, of which period nine months were conditionally suspended for five years, and six months were to run concurrently with the sentence imposed on Count One.
The effective punishment of six months' imprisonment with labour was then back-dated to 7 March 1999, being the day when the incarceration of the accused as remand prisoners began.
The judgment, on both conviction and sentence, is now reported, sub. nom. S v Blanchard & Ors, in 1999 (2) ZLR 168 (H).
On 15 September 1999, a statement, made by the applicant, then the Attorney-General for Zimbabwe, and presently the Minister of Justice, Legal and Parliamentary Affairs, was published in The Herald newspaper under the headings: “US gunmen's sentence causes outrage, Attorney-General's office expresses shock at court's trivialisation of offence.”
The article that followed reported that:
“The Attorney-General's Office is shocked and outraged by the effective six month jail term imposed on the three Americans convicted for illegal possession of weapons and attempting to take them on board an aircraft. It intends to appeal to the Supreme Court against the sentence which it said had trivialised the seriousness of the crime. In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa, said the sentence handed down by High Court Judge, Justice Adam, 'induces a sense of shock and outrage in the minds of all right-thinking people.'
He said Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon were convicted of offences which were treated as serious by all civilised countries worldwide, including America, which was in the forefront of fighting terrorism and gun-running.
'By imposing sentences which do not match the seriousness of the offences, Justice Adam has in effect trivialised crimes of unlawful possession of arms and has seriously erred in doing so.
The Attorney-General's Office is left bemused by the meaninglessness of it all.
The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.
Mere unlawful transiting of firearms through the territory of Zimbabwe is in itself a serious and gross violation of the sovereign and security interests of Zimbabwe.'
Mr Chinamasa said the attitude taken by the court, in meting out sentences which did not match the severity of the crimes committed, came against the backdrop of repeated complaints made to him by his Law Officers of hostility and verbal abuse directed at them and their submissions by the Bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.”
Reaction to the article led to the issuance of a citation for contempt of court. It was served on the applicant on 28 September 1999. In its amended form the citation reads:
“TAKE NOTICE THAT on the 28th day of September 1999 The Honourable Mr Justice Adam caused a citation to be issued against you whereby YOU ARE TO APPEAR in person before the High Court of Zimbabwe in Harare on the 1st day of October 1999 at 10:00am or soon thereafter to show cause why an Order of Contempt should not be made for the wilful and intentional contemptuous statement issued by you, which statement you caused to be published or alternatively was published in the issue of the 15th September 1999 of THE HERALD, as appears more fully from the attached copy entitled 'US gunmen's sentences causes outrage'.”
II. THE PROCEDURE ADOPTED BY THE HIGH COURT
The hearing of the proceedings initiated by the citation was assigned to BLACKIE J. He immediately appointed a legal practitioner in private practice to appear as amicus curiae to present the complaint against the applicant.
On 1 October 1999, the learned judge held a pre-hearing conference at which the parties agreed to a time-frame for the filing of a Defence Outline by the applicant and written heads of argument by both him and the amicus curiae. The matter was then postponed for a week.
At the commencement of the proceedings, on 8 October 1999, the amicus curiae particularised the passages in the reported words of the applicant which were considered to contain the contempt alleged against him. These were:
(a) The statement that the sentence handed down “induces a sense of shock and outrage in the minds of all right-thinking people.”
(b) The statement that: “By imposing sentences which do not match the seriousness of the offences, Justice Adam has, in effect, trivialised crimes of unlawful possession of arms and has seriously erred in doing so. The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.'”;
(c) The statement that: “All these developments erode the office's confidence in the administration of criminal justice.”
Thereafter, counsel for the applicant, acting in terms of section 24(2) of the Constitution of Zimbabwe, requested the court to refer to the Supreme Court for determination a number of questions in respect of which it was contended that the proceedings were in contravention of the Declaration of Rights.
The questions, subsequently re-drafted and re-presented to the Court, were these:
“1. Whether the High Court and/or counsel appearing amicus curiae, can, before the High Court, present allegations of contempt of court in the light of the provisions of section 76 and section 18(2) of the Constitution.
2. Whether the choice and assignment to deal with this matter, by the Judge who passed the sentence which was commented upon in the alleged contemptuous statement of the presiding judge, and the selection of counsel to appear amicus curiae by the assigned judge, violates the Attorney-General's right to appear before an independent and impartial court established by law as provided in section 18 of the Constitution.
3. Whether the order issued by the High Court, on 1 October 1999, which order was issued in the presence of the Attorney-General, and, in respect of which the Attorney-General, when invited, elected to make no submissions:
(a) Violates the Attorney-General's right not to be compelled to give evidence as provided for in section 18(8) of the Constitution, given that he was ordered to file a Defence Outline;
(b) Violates the Attorney-General's right to be given adequate time to prepare his defence as provided for in section 18(3) of the Constitution, in circumstances where the Attorney-General, at no stage, applied for or requested an extension of time, nor did he, at any time, object to the time limits set out in the said order, and, in circumstances where the Attorney-General requested a postponement to 6 October 1999 and then 8 October 1999, to enable him to travel to Zambia on Government business, both requests being granted;
(c) Violates the Attorney-General's rights to examine witnesses as provided for in section 18(3)(e) of the Constitution, in circumstances where he was ordered to file argument relating to the facts and the law before the hearing.
4. Whether the procedure in terms of which the Registrar can issue a court application, which is not supported by any affidavit as to facts, as is provided in Order 43 Rule 389, violates the Attorney-General's right to a fair trial as is provided for in section 18 of the Constitution.
5. Whether the citation issued on 28 September 1999, which calls upon the Attorney-General to show cause why an order of contempt should not be made, violates the presumption of innocence of the Attorney General and unfairly places the onus to prove innocence on the Attorney-General in contravention of section 18 of the Constitution.
6. Whether the contempt proceedings, as particularised, violate the Attorney-General's freedom of expression, that is to say, his right to hold opinions and to express such opinions without interference as is provided for in section 20 of the Constitution.”
After reserving his decision on the questions raised, BLACKIE J ruled that it had not been shown to his satisfaction that question 1 concerned a breach of the Declaration of Rights; and that questions 3 and 4 were frivolous and vexatious within the meaning attributed to the phrase in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.
He therefore declined to refer these three questions. His Lordship's detailed reasons for so concluding are to be found at 297B-298A and 299E-300D of the judgment, which is reported in 1999 (2) ZLR 291 (H).
However, the request to refer questions 2 and 6 (as modified in the judgment), as well as question 5, was acceded to.
Added thereto was the further question of whether a person charged with contempt of court falls under the protections provided to a person charged with a criminal offence under section 18 of the Constitution.
The learned judge recast the questions in the following manner:
“1. Whether a charge of contempt of court is a charge of a criminal offence entitling the person charged to the protections afforded by the provisions of section 18 of the Constitution.
2. If the answer to question 1 is in the affirmative:
(a) Whether the procedure whereby a person charged with contempt of court is tried by the court which complains about the contempt violates the right of a person, in terms of section 18 of the Constitution, to be tried by an independent and impartial tribunal.
(b) Whether the citation issued on 28 September 1999, which called upon the accused person to show cause why an order of contempt should not be made against him, violates the presumption of innocence on the part of an accused person in contravention of section 18 of the Constitution.
3. Whether the law of contempt of court, as contained in the common law of Zimbabwe, is such as cannot be shown 'to be reasonably justifiable in a democratic society', and, therefore, is incompatible with the provisions of section 20 of the Constitution.”...,.
V. WHETHER A CHARGE OF CONTEMPT OF COURT (BY SCANDALISING THE COURT) IS A CHARGE OF A CRIMINAL OFFENCE ENTITLING THE PERSON CHARGED TO THE PROTECTIONS AFFORDED BY THE PROVISIONS OF SECTION 18 OF THE CONSTITUTION
Subsection (1) of section 18 of the Constitution recites that:
“Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”
Subsections (2) to (9) spell out the fundamental protections which a person charged with, and tried for, any criminal offence must be afforded.
The nature of contempt of court was correctly described by the learned judge in the reported judgment supra, at 296F, as follows:
“Contempt of court, although it may have a penalty attached to it similar to that which is imposed in criminal cases, has never been treated as crime strictu sensu. It is, and has always been, treated as sui generis.”
Textbooks are replete with discussion of the peculiarities of contempt law and the extent to which proceedings for contempt defy classification strictu sensu as criminal or civil, but are to be regarded as sui generis.
So far as contempt involving disobedience to the order or process of a court is concerned, the offence is often treated as “civil contempt.” This is because such contempts are, in reality, a form of execution, pursuant to which the person of the defaulting party may be attached in order to coerce compliance with the order: see Cape Times Ltd v Union Trades Directories (Pty) Ltd 1956 (1) SA 105 (N)…,; Wiley NO v M 1979 RLR 144 (GD)…,; and because proceedings to punish the contempt are almost invariably initiated by the party in whose favour the civil order was made and who may waive punishment.
Nonetheless, such contempt is a criminal offence for which the contemnor may be indicted at the instance of the Attorney-General: see MILTON, South African Criminal Law and Procedure 3ed, Vol II…,; and particularly, S v Beyers 1968 (3) SA 70 (A)…,; S v Benatar 1984 (1) ZLR 296 (S)…, 1984 (3) SA 588 (ZS)…,.
In its most recent consideration of the matter, the Privy Council in Ahnee & Ors v Director of Public Prosecutions [1999] 2 WLR 1305 (PC)…, described scandalising the court as a form of contempt that is not part of the ordinary criminal law.
As I understand it, that conclusion does not mean that such contempt is not an offence for particular purposes. It is an offence against the court rather than against the State. It is an injury committed against a person or body occupying a public judicial office, by which injury the dignity or respect which is due to such office, or its authority in the administration of justice, is intentionally violated: see Attorney General v Crockett 1911 TPD 893…,; Noel Lancaster Sands (Edms) (Bpk) v Theron 1974 (3) SA 688 (T).
In In re: Muskwe 1992 (1) ZLR 44 (H), 1993 (2) SA 514 (ZH) ADAM J held that the right of an accused person, under section 18(2) of the Constitution, to be tried by an independent and impartial court established by law, had been denied in a situation in which the magistrate at whom the contemptuous conduct had been directed, presided over the contempt proceedings which followed.
For this involved the magistrate being arbiter in his own cause.
The Canadian case of R v Cohn (1985) 10 CRR 142 (Ont. CA)…., is to the same effect…,.: see also Uncedo Taxi Service Association v Maninjwa & Ors 1998 (6) BCLR 683 (E)…, 1998 (3) SA 417 (E)…,; MILTON, South African Criminal Law and Procedure 3ed, Vol II…,.
I respectfully agree with these decisions.
It follows, in my view, that although contempt by scandalising the court is an offence sui generis and is not part of the ordinary criminal law, it is, nonetheless, the responsibility of the judicial officer hearing the matter to ensure that the procedure adopted complies with the constitutional protections afforded an accused person charged with an ordinary criminal offence.
After all, the contemnor, like the convicted accused, is liable to punishment in the discretion of the court.
VI(A) WHETHER THE PROCEDURE WHEREBY A PERSON CHARGED WITH CONTEMPT OF COURT IS TRIED BY THE COURT WHICH COMPLAINS ABOUT THE CONTEMPT VIOLATES THE RIGHT OF A PERSON, IN TERMS OF SECTION 18(2) OF THE CONSTITUTION, TO BE TRIED BY AN INDEPENDENT AND IMPARTIAL COURT
The contention advanced by the applicant is that the High Court, which he is accused of having scandalised, is the very one which is to determine whether the statements he made were contemptuous of it; it will thus be acting as judge in its own cause.
Expressed differently, the injured party is not, in the circumstances, an independent judicial body. It cannot impartially adjudicate when it itself has been offended against and has issued the citation. Consequently, any proceedings brought before the High Court would amount to a contravention of the applicant's rights under section 18(2) of the Constitution. A fair hearing would be denied him.
The contention, which must be assessed against the factual situation, and not hypothetically, raises the question of whether there is a real or substantial risk of BLACKIE J, or any judge of the High Court (other than ADAM J, for there was never any prospect of him being chosen as the adjudicator) being unable to disabuse his or her mind of extraneous and prejudicial information or attitudes which they are not entitled to consider in reaching a decision.
I am satisfied that only the remotest possibility exists of a judge, imbued with basic impartiality, legal training, and the capacity for objective and un-emotional thought, being consciously or subconsciously influenced by extraneous matter.
I would repeat what was said in Banana v Attorney-General 1998 (1) ZLR 309 (S)…, 1999 (1) BCLR 27 (ZS)…,….,:
“To accept that there is a real or substantial risk of a judge's mind becoming so clogged with prejudice by what he has read or heard about an accused, would mean that it would be impossible to find an impartial judge for a high profile case; and that such an accused could never receive a fair trial. The result would be nothing less than judicial abdication. The proposition needs merely to be stated to convince of its unsoundness.”
I regard the decision to assign the matter to BLACKIE J as entirely proper. He was not the author of the judgment criticised by the applicant. He had not been involved at any stage of the proceedings brought against the three accused. It was not his personal dignity, respect, and professional ability that had been injured. To suggest, therefore, that BLACKIE J (or any other judge for that matter) is incapable of dealing with the proceedings in an impartial and objective manner since the criticism levelled directly at a colleague affected the authority of the High Court in the administration of justice, is wholly unconvincing.
