THE State V Terrence Bondiya

### Preamble
1
HH 60/18
CRB 4730/15
---------


THE STATE

versus

TERRENCE BONDIYA

IN THE HIGH COURT OF ZIMBABWE

BERE J

HARARE 2 SEPTEMBER 2015 & 7 FEBRUARY 2018

Review Judgment

BERE J:	The background to this case is that the accused appeared before the court a quo on a default enquiry which was centered on the accused’s default in performing community service as had been ordered by the court.

In the middle of the enquiry the accused lost it out and had the following exchanges with the presiding magistrate.

“Axxd	-	I do not mind going to jail but you are corrupt

Q by magistrate	-	why do you say I am corrupt?

A	-	I do not care if I go to jail.  I do not want to explain that.

Q	-	Do you realise that what you are saying is contemptuous

A         -	I have nothing to explain to you I was assaulted by soldiers when I was initially arrested and I told the court but nothing was done.

Q	-	Did you report the assault as advised?

A	-	The courts don’t help me

Q	-	So what is the complain you are raising based on

A	-	I have said I have nothing to tell this court

Q          -	This court will note that the case proceeds in terms of section 71(1) of the MCA and hold you in contempt over your careless words.  Do you have anything to say?

A	-	No

Q	-	Do you have anything to say in these proceedings?

A	-	What can I say?

Q          -	A person who deliberately misbehaves while the court is seated can be held to be in contempt.  You have insulted the court thereby hurting its dignity and integrity and that behaviour is contemptuous.

A	-	?

The accused person is hereby found guilty of contempt of court in terms of s71 (1) of the MCA”

When requested to make submission in mitigation before sentence was passed the accused declined and the court proceeded to sentence the accused person to 35 days imprisonment.

There can be no doubt that the accused was properly convicted if regard is had to the provisions of section 71(1) of the Magistrates’ Court Act.

For clarity’s sake the section in question framed as follows:

“71	 Contempt of Court

If any person, whether in custody or not –

Willfully insults the magistrate during his sitting in court or any clerk or messenger or other officer of any court during his attendance therein;

…

…

it shall be lawful for any police officer or private 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 impose on the offender a fine not exceeding level here 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.

Where any magistrate commits or fines any person in terms of subsection (1) he shall without delay transmit to the registrar for the consideration of a judge of the High Court in chambers a statement certified by such magistrate to be true and correct on the ground and reasons for his action, and shall also furnish to the person convicted a copy of such statement certified by him.

…

It is clear that this section was crafted to uphold the dignity of the court or to protect the integrity of the presiding officer.

It is self-evident from the record of proceedings that the conduct of the accused was calculated to hurt the integrity of the presiding magistrate and the conviction of the accused was beyond reproach.

It is the sentence of the accused which court my attention and which I felt required immediate correction.

In the event of the magistrate opting for imprisonment of the accused, the sentence is limited to one month and not 35 days imposed by the magistrate in this case.

It will be also noted from the exchange between the magistrate and the accused that the accused alleged that when he had earlier appeared before the magistrate he had raised a complaint to the court about his alleged assault by the soldiers.  Instead of instructing the prosecutor to immediately investigate the matter through the police the magistrate had in fact advised the accused to report his matter to the police – presumably these are the same officers who had caused his arrest on a matter in which he was sentenced to do community service which caused his problems with the magistrate in the instant case.

I think for practical purposes, once an accused raises a complaint especially of assault with a magistrate, the magistrate concerned must immediately come to the aid such an accused by instructing the prosecutor to deal with the issue instead of opting for this cumbersome exercise where the accused is directed to go back to the police to lodge a complaint when the magistrate is already seized with the complaint.

The accused’s frustration when he alleged that the court was unable to assist him was in my view understandable hence his outburst in court.  This ought to have been accepted as a factor in mitigation of sentence despite the accused having refused to address the court in mitigation before one was passed.

The second issue that I note which has however not been the subject of this review is with respect to the clear provisions of section 71(2) of the same Act.  The provision requires the magistrate to furnish the review Judge together with the convicted person with certified copies of a statement by the magistrate which captures or summarises the circumstances under which the court made the decision to find the accused in contempt of court.  Because these are summary proceedings, it is imperative that such certified statement be submitted together with the review record.  This statement was conspicuously missing from the review record but for purposes of expediency, I ignored this omission because I could follow what happened in court.

Having considered all the factors as highlighted including the failure by the presiding magistrate to deal promptly and effectively with the accused person’s complaint of assault at the hands of soldiers I, with the concurrence of my brother, MUSAKWA J felt that the magistrate’s sentence of 35 days imprisonment was clearly not in line with the penalty provision of the Act.

Consequently, the sentence of the magistrate is set aside and substituted by the following:

“The accused is sentenced to 14 days imprisonment.”

Musakwa J ……………………………….. I agree