Contempt of Court re: Defiance of Orders of Court

HH79-10 : THE STATE vs ROY LESLIE BENNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI

The witness did not take kindly to the ruling, and, when eventually excused, after exhausting his evidence, he had a parting shot for the court when he retorted; “Thank you my Lord for wasting my time.” The court chose to turn a deaf ear to his contemptuous behaviour seeing that he had been badly ...

HH83-15 : THE STATE vs ELISHA SANGO
Ruled By: DUBE J

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 ...

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 9^th 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;

(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.

HH117-10 : FARAI MAGUWU vs THE STATE
Ruled By: BHUNU J

The State was correct in conceding that the appellant be accorded medical attention forthwith, and the magistrate was also correct in granting that order by consent.It was, however, wrong, for the defence to take the issue on appeal to this court when the issue had been determined in their favour ...

HB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA 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 Criminal Law (Codification and Reform) Act [Chapter 9:23] (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 Morrinah 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.

Counsel 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 the 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 counsel 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 five (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 HB258-16.

In addition, the penal provision in section 182 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a fine not exceeding Level 6 or imprisonment.

Subsection (1) of section 182 of the Criminal Law (Codification and Reform) Act 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)…,; S v Chawanda 1996 (2) ZLR 8 (H)…,; 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, or, in default of payment, 10 days imprisonment.”

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

In the practice of law the world over, it is an accepted principle that legal practitioners are officers of the court. As such, they assist the court in dispensing justice and owe the court a duty to not only bring to its attention legal pronouncements on the law that are useful in the resolution of disputes but also to disclose to the court the truth which, in any event, is the cornerstone of the justice delivery system.

In that regard, legal practitioners, as members of the noble profession, are expected to treat the court with respect and be diligent in the discharge of their duties. They occupy a privileged position under the wings of the court as perhaps the last bastion in the defence of individual rights and liberties, and, therefore, are not expected to resort to obfuscation in their defence of accused persons brought before the courts.

As much as legal practitioners are allowed to be as tenacious as possible in defending their clients, they still have a duty towards the court.

A legal practitioner has the right to criticize the court's judgment but the right to freedom of expression does not permit the making of wild and unproven comments imputing corrupt or improper motives on judicial officers as this would create a real and substantial risk of impairing public confidence in the administration of justice: see In re Chinamasa 2000 (2) ZLR 322 (S).

In this application, the applicant seeks an order stopping criminal proceedings in the Magistrates Court of Filabusi pending a review by the High Court of refusal by the presiding magistrate, who is the first respondent in the application, to recuse himself at the behest of the applicant.

The applicant was arraigned before the first respondent on a charge of contempt of court in contravention of section 182 of the Criminal Law Code [Chapter 9:23]. The charge arose out of a court order issued by the High Court on 20 November 2015 interdicting the applicant from interfering with one Claver Masiiwa's control of certain property the latter had purchased from a company known as Trianic Investments (Pvt) Ltd.

Although the court order was served on the applicant on 3 December 2015 he allegedly violated the court order by continuing to interfere with Claver Masiiwa's control of the property and using the said property as his own.

The conduct complained of led to charges being preferred against the applicant aforesaid.

He initially appeared in court on 25 October 2016 but sought a postponement to a later date. The matter was then remanded, by consent, for trial on 10 November 2016.

When the matter was called on that date, the applicant's counsel immediately launched an application for recusal of the trial magistrate.

Without leading any sworn evidence or producing any proof, and, indeed, without taking an oath himself, the legal practitioner launched a volley of unmitigated and very serious accusations against the trial magistrate.

(i) Firstly, he claimed that, on 8 November 2016, the magistrate had been spotted at Filabusi Shopping Centre conducting a conversation with one Councillor Ngwenya in the presence of the complainant.

He did not indicate what was wrong with a magistrate conversing with a local councillor.

(ii) Secondly, he stated, that, some time before, the trial magistrate had presided over a civil case involving two parties, namely, Mhandu and Mswela, in which he found in favour of Mswela. He claimed that Mswela is a friend of the complainant in the criminal case and that he had since established that the magistrate was later “roped into the mining business that Mswela had taken from Mhandu.”

The legal practitioner did not even suggest that the decision of the magistrate in that civil matter was wrong and whether it was ever contested. He however suggested that the aspect of the magistrate going into business with a former litigant was at the instance of the complainant.

(iii) Thirdly, the legal practitioner claimed, that, upon the arrest of his client on the charge he is facing the officer in charge had disclosed to him that he was under pressure from “court officials” to take the matter to court. As a result, the docket had been processed and taken to court in one day.

It turned out that the accused person was taken to court on a summons. At no time was he detained.

The legal practitioner did not allude to any evidence to the effect that it was the trial magistrate who had put the officer-in-charge under pressure or that the magistrate had any interest in the matter.

It was for the foregoing reasons that the legal practitioner asked the magistrate to recuse himself.

Before responding to the application, the public prosecutor desired to investigate what may have been wild and unguarded, if not unsubstantiated accusations. He requested a 30 minute adjournment to enable him to do so.

When the court resumed, the legal practitioner did not even allow the prosecutor to respond.

Turning the entire proceedings into a circus, he made further accusations against both the magistrate and the public prosecutor. He claimed that while they were outside the courtroom, after the short adjournment, the complainant had rushed to his vehicle where he was overheard talking on the phone to an unknown person. He was saying to that person; “we need to increase the amount of money, may you get ready.”

The legal practitioner suggested that the complainant was preparing to increase the bribe money presumably paid to the magistrate and/or prosecutor.

He said after that phone call the complainant had rushed to the public prosecutor's office.

He was not done.

He went on to claim that he had observed the office-in-charge he had spoken about earlier, hovering around the magistrate's chambers. To him, the magistrate had summoned the officer-in-charge for a reprimand presumably for having revealed to the accused person that the magistrate had exerted pressure on him to bring the docket to court.

It is needless to say that all these allegations were refuted by both the public prosecutor and the magistrate.

The prosecutor stated, that, on the day the complainant was alleged to have met the magistrate he was nowhere near Filabusi. He was at his farm in Chegutu. He drew attention to the fact that no link had been established between the complainant and Mswela or Mhandu, pointing out that the court could not be expected to recuse itself on flimsy and baseless allegations.

The magistrate refused to recuse himself giving sound reasons.

He stated, in his ruling, that, he did not know the complainant. He pointed out that he was not engaged in any mining business, and that even if the complainant had been overhead making the statement complained of in a telephone conversation that statement was meaningless.

After that determination, the trial could not commence because the legal practitioner for the accused person stated that he had three more applications to make. He did not disclose the nature of those applications and did not make any of them.

The matter was then postponed to 23 November 2016, presumably to allow the applicant to make the three applications.

On 16 November 2016, the applicant filed a review application in this court, HC2883/16, contesting the refusal of the magistrate to recuse himself. Only one ground of review is raised in that review application, namely that;

“The respondents (the magistrate and the prosecutor general - not the public prosecutor seized with the matter in Filabusi) have shown bias against the applicant in the proceedings on CRB338/16 and therefore should recuse themselves from the trial.”

Apart from the fact that it is well-nigh impossible for the Prosecutor General to recuse himself from his Constitutional mandate of prosecuting suspects, no bias is shown throughout the three page founding affidavit of the applicant upon which the review application is based.

Instead, it regurgitates the allegations made by counsel in the Magistrates Court, from the bar, almost word for word.

A day before the trial was set to resume, the applicant then filed this urgent application for a stay of the criminal proceedings pending review.

The applicant is asking this court to intervene in uncompleted proceedings of a lower court where that court has issued an interlocutory order which he is not happy with....,.

I..., desired to know whether the applicant was entitled to seek shelter under the wings of this court if he is facing contempt of court charges for failing to obey a lawful order issued by this court....,.

I must mention, in passing, that, section 85(1) of the Constitution allows any person acting in their own interests to approach the court alleging that a fundamental right or freedom contained in Chapter 4 has been infringed. Subsection (2) of section 85 provides that an approach to the court in terms of subsection (1) of section 85 shall not be denied only on the basis that the person has contravened a law.

In my view, those Constitutional provisions do not detract from the time-honoured legal position that people are not allowed to come to court seeking assistance if they are guilty of contempt of an order of the same court.

It occurs to me, that, if a litigant who is contemptuous of an order of this court were allowed to seek the court's assistance when he has not complied with the court order then the court risks compromising its integrity and being reduced to a circus.

I conclude, therefore, that, this case is distinguishable from that contemplated by section 85(2) of the Constitution which relates to the enforcement of a fundamental human right.

It certainly is not a fundamental human right of the applicant to disobey a lawful order of this court.

If he wants protection from this court, he must bring himself fully under the authority of the court - not to pick and choose what the court should do.

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Law Portal
Zimbabwe

Contempt of Court re: Defiance of Orders of Court

HH79-10 : THE STATE vs ROY LESLIE BENNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI

HH83-15 : THE STATE vs ELISHA SANGO
Ruled By: DUBE J

HH117-10 : FARAI MAGUWU vs THE STATE
Ruled By: BHUNU J

HB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

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Law Portal Zimbabwe

Contempt of Court re: Defiance of Orders of Court

HH79-10 : THE STATE vs ROY LESLIE BENNET Ruled By: BHUNU J and ASSESSORS: MUSENGEZI

HH83-15 : THE STATE vs ELISHA SANGO Ruled By: DUBE J

HH117-10 : FARAI MAGUWU vs THE STATE Ruled By: BHUNU J

HB45-17 : MBONGENI MPOFU vs THE STATE Ruled By: MATHONSI J and TAKUVA J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O. Ruled By: MATHONSI J

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Law Portal
Zimbabwe

HH79-10 : THE STATE vs ROY LESLIE BENNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI

HH83-15 : THE STATE vs ELISHA SANGO
Ruled By: DUBE J

HH117-10 : FARAI MAGUWU vs THE STATE
Ruled By: BHUNU J

HB45-17 : MBONGENI MPOFU vs THE STATE
Ruled By: MATHONSI J and TAKUVA J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J