The
Accused appeared before a Magistrate in a maintenance court at Harare...,.
During the court sitting, the Accused committed acts of contempt of court. He
was convicted thereof and sentenced to undergo forty-five days of imprisonment.
In
terms of section 71(2) of the Magistrates Court Act [Chapter 7:10], the Magistrate
referred the matter to this court for review.
The
facts which gave rise to the conviction were that upon being ordered by the Magistrate
to pay maintenance in the sum of $400 per month for the maintenance of his
children, he wilfully committed certain acts of contempt of court. The record
shows that during the court's sitting, the Accused charged at the Magistrate
and shouted “Bullshit! There is no justice in this court.” He went on to bang
the Magistrate's bench four times in a most threatening manner. He further
shouted: “You are paid to do your job. This is nonsense.” He advanced towards
the Magistrate and tried to slap her but she evaded the blow. He then threw a
bundle of papers at her face. He continued to shout on top of his voice
disrupting business in the nearby courts. Police had to use force in order to
effect an arrest as he was resisting. He left the courthouse still shouting
unprintable words, and vowed to deal with the Magistrate.
Nothing
turns on the conviction as it was proper. There is no doubt the Accused
committed a most serious act of contempt of court.
Section
71 of the Magistrates Court Act [Chapter 7:10] provides that –
“(1)
If any person, whether in custody or not –
(a)
Wilfully insults the magistrate during his sitting in court, or any clerk, or
messenger, or other officer, of any court, during his attendance therein; or
(b)
Wilfully interrupts the proceedings of, or otherwise misbehaves in court; or
(c)
Being a witness, refuses to answer any legal question relative to the matter in
issue;
It
shall be lawful for any police officer, or private person, by order of the
magistrate, to take such offender into custody, and detain him until the rising
of the court, and the magistrate may, by warrant under his hand, impose on the
offender, a fine not exceeding level three, or commit him to prison for a
period not exceeding one month, or impose such a fine on him and commit him to
prison for such a period.”
In
this case, the Accused did not only insult the Magistrate and interrupt the
court proceedings, but went further to assault and threaten the Magistrate. He
showed open insolence to a judicial officer during her sitting. This is the
highest form of contempt of court. The court was correct in convicting him of
contempt of court.
The
problem, however, is with the sentence the Magistrate imposed.
Section
71(c) of the Magistrates Court Act [Chapter 7:10] provides that the magistrate
may, by warrant under her hand impose on the offender a fine not exceeding
level three, or commit him to prison for such a period not exceeding one month.
The Magistrate in the court a quo imposed a sentence of forty-five days in
prison.
The
sentence imposed is certainly ultra vires the statutory provisions, and cannot,
therefore, stand.
The
Magistrate in the court a quo was, however, correct in imposing a prison term,
as punishment in this case, because of the severity of the offence committed.
Any other form of punishment would have an effect of seriously trivializing the
offence. There is certainly a need to uphold the sanctity of courts. In my
view, the wilful actions of the Accused seriously undermined the administration
of justice.
There
is need for deterrence.
This
is the reason why it would not be proper to impose the sentence of a fine...,.
This is despite the fact that the Magistrates Court Act [Chapter 7:10] calls
for either the imposition of a fine, or imprisonment of not more than one
month, or both such fine and imprisonment.
In the result, the sentence of forty-five days
imposed by the Magistrate is set aside and is substituted by a term of
imprisonment of thirty days.
