S v Sango (CRB 9458 of 2014) [2015] ZWHHC 83 (20 January 2015)

1 HH 83-15 CRB 9458/14 THE STATE versus ELISHA SANGO HIGH COURT OF ZIMBABWE DUBE J HARARE, 21 January 2015 Review Judgment 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 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 drivers 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 s 182 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. He was sentenced to 8 months imprisonment of which 3 months imprisonment was suspended for 5 years on condition of restitution. The remaining 3 months were suspended on condition that the accused performed community service. 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 9th 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.” HH 83-15 CRB 9458/14 Section 182 of the said Act 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 goes on in subsection (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; (c) misbehaviour in court; (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 preferred charges in terms of s 182 as read with s182 (2) (e).” The accused came on plea. When the essential elements canvassed, the accused admitted that he was ordered by the court not to sell, destroy and dispose of complainant’s HH 83-15 CRB 9458/14 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 Q Yes 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.