Criminal
Appeal
MATHONSI
J: The
appellant, a parent at Mawaba Primary School in Bulawayo was
convicted by the Magistrates Court sitting at Western Commonage on 21
October 2015 of contempt of court in contravention of section 182(2)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
He
was sentenced to 9 months imprisonment of which 4 months imprisonment
was suspended for 5 years on condition of future good behaviour.
He
was aggrieved by that outcome and noted an appeal to this court
against both conviction and sentence.
In
respect of conviction he took the view that the court a
quo
erred in returning a verdict of guilty when the evidence did not
establish that a crime had been committed. The decision of the court
a
quo
was so grossly unreasonable in its defiance of logic that a
reasonable court could not have possibly arrived at it. The decision
exhibits bias on the part of the court a
quo
against the appellant. The decision infringes upon his constitutional
right to freedom of speech and association.
Regarding
sentence the appellant challenged it on the basis that it induces a
sense of shock and is out of line with the general sentencing trends
for the offence in question especially as the justice of the case
called for the imposition of a sentence other than a custodial one.
On
6 November 2014, the appellant as first respondent had appeared
before a magistrate sitting at Western Commonage in an application
for a binding over order made by Morrinah Dhlamini the headmistress
of the school in terms of section 388 of the Criminal Procedure and
Evidence Act [Chapter 9:07] against the appellant and three other
people. The court issued a peace order against them to wit;
“It
is ordered that 1st,
2nd
and 3rd
respondents:
1.
Should keep peace towards applicant.
2.
Should not disturb school activities at Mawaba Primary School.
3.
Should not hinder the applicant from running or exercising her duties
as the headmistress of Mawaba Primary School.
4.
Threaten applicant in any way.
4th
respondent;
5.
To keep peace towards the applicant.”
While
that court order was still operational the applicant attended a
meeting at the school convened by the headmistress for parents on 23
September 2015. The State alleged that during that meeting the
appellant ignored the agenda of the meeting and started to air his
grievances complaining bitterly as to why, himself and the other
three persons had been insulted by being taken to court. He allegedly
insulted the chairperson. This led to a chaotic situation as a result
of which the meeting was aborted.
For
his troubles the appellant was dragged before the Magistrates Court
for breaching section 182(2) of the penal code. Paragraph (e) of
subsection (2) provides that a person may impair the dignity,
reputation or authority of a court by 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.
It
is trite that the subject has a duty to bow to the decision of the
court and where there exists a remedy, to then pursue that remedy in
court. This is proper for the administration of justice. The dignity
of the courts of law should never be demeaned or undermined.
The
State led evidence at the trial from Morrinah Dhlamini the
headmistress at Mawaba Primary School who told the court that she is
the one who convened the meeting. During deliberations the appellant
started shouting at the chairperson saying he should tell the parents
why he and his colleagues had been taken to court for a peace order.
He told the chairperson that he should not hide behind the bible. In
the process the appellant disrupted the meeting which could not
continue after that. According to Dhlamini the appellant took a
tangent casting aside the agenda to complain about the peace order
that had been taken against him and others.
Nkosana
Mazibisa who was chairing the meeting also testified on behalf of the
State. He stated that during deliberations the appellant deviated
from the field of discourse and started attacking him saying he was
lying to parents and accusing him of having dragged him to court.
That way he violated the peace order.
Mr
Butshe-Dube
for the appellant submitted that the appellant was entitled to attend
the meeting as a parent and made contributions during the meeting at
the invitation of the chairperson. For that reason he did not commit
an offence.
I
do not agree.
The
evidence showed that the appellant was not interested in the items on
agenda but was bent on fighting the court order which had been made
against him. What he said was not on agenda. He verbally abused the
chairperson accusing him of being a liar.
This
is a meeting which had been called by the headmistress of the school
with a peace order in her favour. His conduct was disruptive and had
the effect of disturbing a school activity. He was contemptuous of a
court order made against him. We are therefore unable to find any
misdirection on the conviction which was proper as the State managed
to prove its case beyond a reasonable doubt.
It
is however the sentence of imprisonment without the option of a fine
which was a misdirection.
The
concession made by Ms
Ngwenya
for the State that the failure by the court a
quo
to consider any non-custodial sentence because contempt of court is a
serious offence was a misdirection of monumental proportions, was
properly made.
The
moment the court a
quo
settled for an effective imprisonment of 5 months, that brought the
matter within the community service grid. The court was therefore
required to embark on the exercise of inquiring into the suitability
of community service as an option. It had no discretion in that
regard. See S
v Antonio
and Others
1998 (2) ZLR 64 (H); S
v Mbizvo
and Others
HB 258/16.
In
addition, the penal provision in section 182 is a fine not exceeding
level 6 or imprisonment. Subsection (1) of section 182 provides:
“Any
person who, by any act or omission, impairs the dignity, reputation
or authority of a court—
(a)
intending to do so; or
(b)
realizing 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.”
This
court has repeatedly stated that where the statute provides for a
sentence of a fine or alternatively imprisonment, the court must give
serious consideration to the option of a fine and reserve
imprisonment for the most serious infractions or repeat offenders.
See S
v Zuva
2014
(1) ZLR 15 (H) 18 A – C; S
v Chawanda
1996 (2) ZLR 8 (H) 10 C – G; S
v Sikhosana
and Others
HB25/17.
The
appellant is a first offender who is married with three children. He
should have been sentenced to a fine.
We
have been told that he was in prison for a period of two weeks before
being granted bail pending appeal. Taking into account all those
factors, it is ordered that:
(1)
The appeal against conviction is hereby dismissed.
(2)
The appeal against sentence is upheld and the sentence of the court a
quo
is quashed and in its place is substituted the following sentence:
“The
appellant shall pay a fine of $20-00 or in default of payment 10 days
imprisonment.”
Takuva
J agrees…………………………………..
Mathonsi
Ncube Law Chambers, appellant's
legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
