S v Mnguni and Anor (CRB 6517 of 2004; CRB 6518 of 2004; HB 58 of 2005; HC 61 of 2005) [2006] ZWBHC 58 (18 January 2006)

Judgment No. HB 58/05 Case No. HC 61/05 CRB 6517-18/04 THE STATE Versus MONICA MGUNI And CHIPO NGWENYA IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 19 JANUARY 2006 Criminal Review CHEDA J: This is a review case referred to me from the Provincial Magistrate’s Office. Accused were arraigned before the court and were charged with contempt of court. The trial magistrate however stated that they contravened section 71 of the Magistrate Court Act [Cap 7:10]. The charge arose as a result of their interruption of the trial proceedings. They interrupted a hearing by protesting that an 80 year old woman in Plumtree should not be spoken to in Shona. They elected to remain silent when the charge was put to them but were however convicted and sentenced to 6 months imprisonment of which 3 months imprisonment was suspended for 5 years on condition that during that period they are not convicted of any offence in contravention of section 71 of the Magistrates’ Court Act [Chapter 7:10]. A criminal contempt is an act which so threatens the administration of justice in general that it requires punishment. This is demonstrated by this provision in the Magistrates’ Court Act. HB 58/05 The said section under which the trial court relied on reads: “Section 71 Contempt of Court (1) If any person, whether in custody or not- (a) wilfully insults the magistrate during his sitting in court or any clerk or messenger or other officer of any court during his attendance therein; or (b) … (c) … it shall be lawful for any police officer or punish person by order of the magistrate to take such offender into custody and detain him until the rising of the court and the magistrate may by warrant under his hand commit any person so offending to prison for any period not exceeding three months, or may impose a fine not exceeding three hundred dollars for every such offence, and in default of payment thereof commit the offender to prison for any time not exceeding three months unless the fine is soon paid.” The said section 71(1) has since been repealed by section 5 (a) Part XXVII of the Criminal Penalties Act number 22/2001 which reads thus: “5. In section 71- (a) in subsection (1) by the deletion of “commit any person so offending to prison for any period not exceeding three months or may impose a fine not exceeding three hundred dollars for every such offence, and in default of payment thereof commit the offender to prison for any time not exceeding three months unless the fine is soon paid” and the substitution of “impose on the offender a fine not exceeding level three or commit him to prison for a period not exceeding one month or impose such a fine on him and commit him to prison for such a period.” The main issue which calls for my attention is the sentence imposed by the offended court. The fact that the accused interrupted the court proceedings is beyond doubt. However, the sentence imposed is unduly HB 58/05 harsh bearing in mind that the Act empowers the court to impose a fine not exceeding level three which is $25 000,00 or a prison term not exceeding one month. The trial court should not have imposed a sentence of 6 months imprisonment, as that sentence clearly goes against the provisions of section 71 which has since been repealed. In any event, even a prison term would have been only appropriate where the contempt was accompanied by some threat of violence to the court or any court official therein. It is trite law that where the legislature has made a provision for a fine the courts should resort to imprisonment only where the case is certainly of a serious nature. Contempt of court is indeed a serious offence and the courts need to be protected from those contemptuous people who appear before them. The dignity of the courts has to be maintained at all costs, see Muchadakuenda v S HH-61-02. However, serious as it is, there is still a need for the courts to impose suitable sentences in the circumstances. What the accused did was no doubt contemptuous of the court as it was capable of bringing the administration of justice into disrepute. The common English proverb that “contempt pierces even through the shell of the tortoise” is well placed in these circumstances where a court of justice and law is interrupted in the matter before it. The rationale of this crime is to ensure that the proper and effective administration of justice by the courts of the land demands that the public respects it. It is for this reason that both contempts in facie curiae (that is in the face of the court itself) and 58/05 HB contempts ex facie curiae (out of the face of the court itself) are regarded as equally serious. It is for that reason that the courts concern themselves with conduct that impinges on the administration of justice in or by the courts. It is again trite that contempt proceedings unlike other court proceedings which commence on either summons or indictment, commence summarily see S v Pillay 1990(2) SACR 410. The offended court has jurisdiction to proceed ex mero muto where a criminal court required an immediate response to safeguard the interests of justice. The need to act immediately in contempt proceedings is the hall mark of the proceedings themselves because of the need to stamp up authority. However, in my view there is a danger of the offended court losing its impartiality and objectivity in meting out a suitable sentence on the offender. This, therefore, unless, carefully approached can easily lead to retribution. The temptation for vindictiveness on the part of the trial court is quite high and I urge the courts to guard against it as it can easily lead into unnecessary harsh sentences in the circumstances. In casu accused persons indeed were guilty of contempt of court, but however, the sentence imposed is not commensurate with the offence committed in the circumstances. The accused have already served their sentences. In future the courts who deal with such offences should timeously submit the record of proceedings for either scrutiny or review. HB 58/05 The sentence imposed was manifestly excessive in the circumstances. The conviction is otherwise confirmed but the sentence is set aside and is substituted with a fine of $25 000 or 1 month imprisonment. Ndou J …………………….. I agree 6