XREF CRB W/C 1191-15
HIGH COURT OF ZIMBABWE
MATHONSI AND TAKUVA JJ
BULAWAYO 27 FEBRUARY 2017 AND 9 MARCH 2017
P Butshe-Dube for the appellant
Ms N Ngwenya for the respondent
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 s182 (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 s388 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:
- Should keep peace towards applicant.
- Should not disturb school activities at Mawaba Primary School.
- Should not hinder the applicant from running or exercising her duties as the headmistress of Mawaba Primary School.
- Threaten applicant in any way.
- 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 s182(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 s182 is a fine not exceeding level 6 or imprisonment Subsection (1) of s182 provides:
“Any person who, by any act or omission, impairs the dignity, reputation or authority of a court—
- intending to do so; or
- 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 HB 25/17.
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