SECTION 13 – MISCELLANEOUS MATTERS

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Contempt of court

Reid-Rowland 28-5

 

If contempt of court is committed during the proceedings in court (in the face of the court), the court may summarily convict and punish the offender: 71(1) MCA. This type of contempt is committed if, for instance, X swears at the judge or makes rude gestures at him, or if X tries to assault the judge or to tear up court documents, or if someone in the courtroom continues to shout and disrupt the proceedings after he or she has been warned to remain quiet, or if a lawyer or a witness arrives in the courtroom in a completely drunken condition.

By accused person

In the case of Musa 1997 (2) ZLR 149 (H) X was arraigned before a magistrate on a charge of housebreaking. After the allegations had been read to him, he said in Shona that he  did not want to be tried by the magistrate. Warned that he was being insolent and contemptuous, he repeated the remark, whereupon he was committed to 30 days’ imprisonment for each utterance. The magistrate said that he had convicted the accused, not in terms of the Magistrates Court Act, but under his or her common law power. The court held that the magistrate had no common law power to commit for contempt. His powers were derived from the Act. It held further that when X expressed a disinclination to be tried by the magistrate, he was in effect asking the magistrate to recuse himself, something he was quite entitled to do. The Act requires that any insult of the court must be wilful, which means that mens rea is required. The court did not ask the accused to explain himself, so there was nothing which would enable the court to determine the accused’s state of mind. The magistrate’s failure to ask the accused to explain himself was a misdirection. When the accused said that he did not wish to be tried by the magistrate, the magistrate should have first warned him that he or she proposed to consider whether he should be convicted of contempt. This would have opened the doors for the accused to proffer his explanation or defence. It would only be in exceptional circumstances that the audi alteram partem principle would not apply to a case where an offender is tried summarily for contempt. One such case might be where the alleged conduct had the effect of disrupting the proceedings, which was not the situation here. The magistrate had not conducted the proceedings fairly. The magistrate’s finding that X’s utterances were intended to belittle the magistrate could not be upheld. The power to commit for contempt is not to be used to vindicate the magistrate as a person. The magistrate appeared confused about whether the alleged contempt was ex facie curiae or in facie curiae. The contempt in this case was in facie curiae. The punishment was not such as would enhance the dignity of the presiding magistrate. It was wrong to treat X’s actions as two counts; they were part of the same transaction. The punishment was also disproportionate to the offence and grossly excessive. A fine would have been appropriate. It was doubtful whether the court’s dignity could be protected by punishing a fool for his indiscretion. It would have been wiser for the court to take time for reflection; this might also have given the accused time to reflect. A magistrate is bound to subordinate his or her personal dignity to the overall decorum of the court over which he or she presides. This does not mean that he or she should not exercise firm control; but keeping firm control is a far cry from saying that the slightest affront to the court’s dignity should be visited with summary committal for contempt.

 

By legal practitioner

In the case of In re Muskwe 1992 (1) ZLR 44 (H): a magistrate at the resumed hearing of a criminal case in which a legal practitioner was representing X, fined the legal practitioner for contempt of court in contravention of s 79(1) of the MCA [now s 71(1) of MCA]. At the previous hearing there had been an altercation between the magistrate and the legal practitioner over the legal practitioner’s line of questioning of a witness. The legal practitioner had told the magistrate that if he was not allowed to conduct the questioning as he saw fit, he would not be able to continue with the case. After an exchange between the magistrate and the legal practitioner in which the magistrate seemingly gave her permission for the legal practitioner to renounce his agency and depart, the legal practitioner left the courtroom. The magistrate decided he was guilty of contempt in that he had done an act calculated to bring the dignity of the court into disrepute. The court decided that the conviction must be set aside because the magistrate had failed to give adequate reasons for her decision and, in particular, had failed to examine whether the vital element of intention was present and whether, if there had been a contempt, it had been purged by the subsequent apology by the legal practitioner.

 

In Mushonga 1994 (1) ZLR 296 (S) the court commented upon whether disobedience by a legal practitioner to an invalid order of court could constitute contempt of court. It ruled that disobedience to such an order can still constitute contempt of court. In order to ensure the proper administration of justice, a person must normally obey a supposedly invalid order and thereafter seek redress by way of appeal or review. However, in exceptional circumstances a person can disobey an invalid order without committing contempt of court. This would be so where, for example, blind compliance with an obviously invalid order would itself tend to weaken respect for the administration of justice. It went on to point out that the crime of contempt is only committed if the accused had actual or legal intention to bring the administration of justice into contempt. Intention is absent if the seemingly insulting behaviour is the result of forgetfulness, ignorance or inadvertence. It may also be absent where the accused disobeys an order under a genuine belief that the order is invalid. It pointed out that non-appearance of a lawyer in a case may go beyond mere discourtesy and amount to a criminal contempt of court, provided that there was intention to interfere with the process of the court and the administration of justice. However, in the present case, X had genuinely believed that the presence in his stead of his professional assistant would be acceptable and had thus had no intention to violate the dignity or authority of the court. Finally, it said that in most cases of alleged contempts by legal practitioners the matter should simply be referred to the Law Society for investigation and possible disciplinary action. Only in an exceptional case, such as where the legal practitioner has used scurrilous language in facie curiae, should the court invoke its criminal jurisdiction to deal with the matter.

 

Where a magistrate proceeds in terms of s 71(1) MCA in dealing with a contempt he or she must certify the statement of the proceedings relating to the contempt as correct and X must be furnished with a copy of such a certified statement: Bango HH-356-84; Sibanda HH-9-86.

 

This power to punish summarily for contempt is essential for the court to uphold its dignity and authority. However, this power is a drastic one which should not be resorted to lightly but only with circumspection. Trivial contempts are best ignored. Even with more serious contempts, the dignity of the court can often be upheld by allowing the offending party the chance to apologise.

 

Where the power is exercised, the judicial officer must not act in the heat of the moment in anger. The atmosphere will be emotionally charged so he or she must recover his or her temper and act objectively. He or she must remind himself that in this sort of case he or she  is acting as prosecutor, witness and judge in the same cause. He or she must be particularly careful in respect of situations where defence lawyers have had altercations with him or her during the course of the presentation of the defence case. A lawyer may sometimes direct insulting remarks towards the bench when he or she believes that the adjudicator has acted unfairly towards his or her client. The usual response to such a case should be to warn the defence counsel about his or her behaviour and to allow him or her to retract his or her remarks and apologise.

 

In the case of In re: Chinamasa 2000 (2) ZLR 322 (S) the Supreme Court ruled that the species of contempt known as scandalizing the court was constitutional. Although under the right to freedom of expression there is a right to criticize the court judgments, the right to freedom of expression did not permit the making of comments imputing corrupt or improper motives to the judicial officers as this would create a real or substantial risk of impairing public confidence in the administration of justice. In this case the Attorney-General had severely criticized the sentence imposed by a judge.

 

Altercations between judicial officer and defence counsel

 

In Nkala HB-64-93, the trial magistrate adjourned a case in mid-trial at X’s request and sent it on review to be set aside and remitted afresh before a new magistrate. In altercations with the magistrate before withdrawing from the case, defence counsel’s conduct bordered on contempt; he was possibly trying to create a situation in which he could avoid continuing with the case, but as the resultant atmosphere was not conducive to the proper administration of justice, the proceedings were set aside and remitted as requested.

 

Binding over orders

Reid-Rowland 28-3

 

A binding over order to keep the peace in terms of s 388 CPEA is a protective mechanism. It is not meant to punish the person upon whom it is imposed; it is aimed at preventing and deterring future misconduct by that person against the person who has sought the order.

 

Prescription period for criminal offences

Reid-Rowland 3-9

 

All the criminal offences which are within the jurisdiction of the magistrates courts become prescribed if prosecutions are not brought against the offender within twenty years from the time that the crime was committed. In other words, the offenders can no longer be prosecuted for these offences after twenty years: s 23 CPEA.

 

Inquests

See Reid-Rowland 2-8