This
record was placed before me for review from the Acting Regional
Magistrate, Mashonaland with the following concerns;
“I
was not satisfied that these proceedings were in accordance with real
and substantial justice since the essential element of whether the
accused, through his act, impaired or intended to impair the dignity,
authority or reputation of the court was not canvassed.”
The
brief background facts to this matter are as follows:
The
accused is the complainant's son. The accused has a protection
order against him barring him from selling the complainant's
property. Sometime in August 2014, and on a date unknown to the
prosecutor, the accused decided to go against the order granted
against him by breaking the complainant's driver's window, stole
a car radio and sold the complainant's tow-hitch.
The
accused person was charged and convicted of the offence of Contempt
of Court as defined in section 182 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23]….,.
The
allegations preferred in the charge involved contempt of court and
were couched as follows;
“Charged
with Contempt of Court as defined in section 182 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]
In
that on 15 February 2014, and at Harare Civil Court, the accused was
ordered by the court not to commit any of the following acts against
Isaac Sango;
“Sell,
destroy and dispose complainant's property.”
But,
between the 8th and 9th
day of August 2014, Elisha Sango decided to go against the order
against him by selling complainant's tow hitch, break complainant's
driver's window and took a car radio and went to sell it.”
Section
182 of the of the Criminal Law (Codification and Reform) Act [Chapter
9:23] creates the offence of Contempt of Court. It reads as follows;
“182
Contempt of Court
(1)
Any person who, by any act or omission, impairs the dignity,
reputation or authority of a court;
(a)
Intending to do so; or
(b)
Realising that there is a real risk or possibility that his or her
act or omission may have such an effect; shall be guilty of contempt
of court and liable to a fine not exceeding level six or imprisonment
for a period not exceeding one year or both.”
Section
182 of the of the Criminal Law (Codification and Reform) Act [Chapter
9:23] goes on, in sub-section (2) to outline circumstances in which
the offence may be committed as follows;
“182(2)
without limiting subsection (1), a person may impair the dignity,
reputation or authority of a court by doing any of the following acts
-
(a)
Having been properly summoned as a party or witness in any judicial
proceedings to attend any court for the purpose of giving evidence or
producing any document or thing before the court;
(i)
Intentionally, or through negligence, failing to attend the court in
accordance with the summons; or
(ii)
And having attended the court, refusing to give evidence or to
produce the document or thing, as the case may be; or
(iii)
Refusing, as a witness, to answer any question put to him or her
which he or she is lawfully required to answer;
(b)
Obstructing, interrupting or disturbing judicial proceedings;
(c)
Misbehaviour in court;
(d)
Insulting a judicial officer or officer of court in the course of
judicial proceedings;
(e)
Knowingly contravening or failing to comply with any order of a court
which is given during or in respect of judicial proceedings and with
which it is his or her duty to comply;
(f)
By words, conduct or demeanour pretending to be an officer of the
court;
(g)
Issuing or publishing to any other person a document that purports to
be issued by or emanate from a court, knowing that the document is
not issued by or does not emanate from the court concerned;
(h)
Publishing evidence that has been given in
camera
or
which the court has ordered should not be published.”
The
conduct complained of falls under subsection 2(e). The prosecutor
concerned did not give the charge sheet and State Outline adequate
attention. What the trial prosecutor ought to have done is to prefer
charges in terms of section 182 as read with section182(2)(e) of the
of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
The
accused came on plea. When the essential elements were canvassed, the
accused admitted that he was ordered by the court not to sell,
destroy and dispose of the complainant's property and that he acted
contrary to the order. The following is part of the exchange that
took place between the court and the accused;
“Q.
You admit that this was an order by a competent court?
A.
Yes.
Q.
And against the order, you took complainant's tow-hitch and you
broke the complainant's driver's window and took a car radio?
A.
Yes.”
I
am satisfied that the accused admitted that what he did was against a
competent order, and, further, that through his act, he impaired the
dignity of the court. Thus, the mental element of the offence was
canvassed and admitted. Although a wrong label was placed on the
charge, I am satisfied that the accused unequivocally admitted the
charge.
I
am satisfied that the proceedings were conducted in accordance with
real and substantial justice. The proceedings are hereby confirmed.
