Children’s Court magistrate sued

Unlawfully jails woman for contempt

 

RELEBOHILE TSOAMOTSE

MASERU – The Children’s Court Magistrate, Puseletso McPherson, has been sued for her misconduct in a litigation involving a couple fighting over custody of their minor child.

McPherson is accused of illegally jailing one of the partners over an alleged contempt of court in disregard of the requirements of the law.

Magistrate McPherson ordered the arrest and detention of ‘Mampeli Marabe for contempt of court sometime in 2020. This she did disregarding of Section 75 (2) of the Subordinates Court Act which requires that contempt committed outside court premises be transferred to the High Court for review.

Marabe was jailed for failing to release the minor child to be with his father as per their arrangement and an order of court. She was then jailed for seven days but, contends that her committal to prison was unlawful.

“…Contempt of court is expressly outside the jurisdiction of the Subordinate Courts,” she argues.

According to Marabe, nothing in the Subordinates Court Act gives magistrates power to deal with a criminal offence of contempt of court or any criminal offence.

She says magistrates’ powers to imprison are civil in nature.

The High Court of Lesotho (sitting as the Constitutional Court) on Tuesday heard an application by Marabe to have the magistrate fined for violating her fair trial rights, liberty and incidental rights and freedom when she jailed her without following the law. She is demanding half a million in damages.

“…that the applicant be awarded M500 000 as constitutional damages for violation of her fair trial rights, liberty and incidental rights and freedoms.”

She has also asked the court to declare that Subordinates Courts have no civil jurisdiction to summarily commit any person to prison over contempt of court committed ex facie curiae (outside court).

Further, it be declared that contempt of court is a criminal offence liable to be adjudicated by magistrate upon a formal criminal charge being presented and with all the attendant criminal procedures plus the standard of prove beyond reasonable doubt.

When Magistrate McPherson jailed her without informing her about the contempt of court charge she was facing, Marabe says the magistrate used the low standard to prove her case and violated her right to fair trial and right to liberty.

The standard of prove in contempt of court is the criminal standard of beyond reasonable doubt.

“Using a lower standard of prove instead of a higher stand means that the person accused for contempt’s liberty is taken for free without paying the legitimate price of proving his guilt beyond reasonable doubt before depriving her of her liberty.”

The usage of a lower standard she argues was unconstitutional and further contends that the magistrate’s decision to imprison her wearing a civil jurisdiction instead of criminal jurisdiction hat violates the principle of no punishment without law.

“For the magistrate who was angry with me to mero metu send me to prison violates, my fair trial right to an impartial judge which is a prerequisite of a fair trial. I know my right to liberty is not absolute, but it may only be legitimately limited by a court of competent jurisdiction. An angry magistrate on the ground that she is herself disrespected is not impartial and her trial is a nullity,” she said.

She adds “the magistrate was a prosecutor and a judge in her own court in violation to the principles of natural justice and since there was no Public Prosecutor, my guilt was not proved beyond reasonable doubt before I was summarily committed to prison.”

Marabe alleges in court papers that she was jailed without being informed about the charge she was facing and being invited to make representation thereof. She also says she was not allowed to have her lawyer present when the Magistrate found her guilty of contempt.

Narrating events of the day she was jailed, Marabe says she was on October 6, 2020, collected from her place of residence by a court official and a police woman informing her that they have been directed by the magistrate to get her.

Upon her arrival at Magistrate McPherson chambers, she says the judicial officer furiously asked her why she chose to close her phone to which she replied that it was never closed.

The question she says was asked several times with the magistrate saying she now disrespect her like she disrespect the husband (3rd Respondent).

When Marabe requested to have her lawyer present, she says the magistrate responded “what kind of a thing is Nthontho?” and instead directed her to sit in one of the rooms in the building. At the time she says she saw her husband walking into the judge’s chambers.

Subsequently, a policeman arrived to her and said he was directed to take her along with one other woman to prison for up to seven days over contempt of court. The other woman is also reported to have been found in contempt over custody issues.

“…then after a long time, a policeman arrived telling us that he was directed to take us to Maseru Women Central prison just like that. Upon arrival at the prison, the prison wards and inmates asked me why I was arrested but I did not know since 1st respondent never communicated it to me that I was charged for contempt of court nor was I given a fair hearing…”

It is Marabe’s case that Magistrates Court has no jurisdictional powers to adjudicate and send a person over a contempt of court sitting as a civil court.

She argues that contempt of court is a criminal offence liable to be adjudicated by the magistrates upon a formal charge being duly presented by the Director of Public Prosecutions (DPP).

While magistrates have powers to regulate and enforce own processes and orders by committal to prison, she says committal can only be done when the court is sitting in its criminal jurisdiction not otherwise as has happened in her case.

She maintains that “The proper and legitimate way of the subordinate court to enforce its orders ad factum praestandum is by way of a formal criminal charge coming before a magistrate for contempt of civil judgement duly presented by the prosecuting authorities.”

Magistrate McPherson denies questioning Marabe about closure of her phone on the day she jailed her, she says she informed her about complaints raised by the husband, Mokhethea Marabe. The husband is said to have complained that he was denied access to the child contrary to the court order

According to the Magistrate, Marabe said she did not release the child because she did not want to.

“The Applicant was very arrogant, the tone of her voice was very aggressive and disrespectful. I then found that she intentionally defied the order,” she states.

She also dismisses allegations that she prevented the complainant from bringing the lawyer on the day she was sent to prison and accuses her of lying.

“Contents are denied, she was at liberty to bring her lawyer, it is obvious that the applicant is now before this court inventing some facts, she was told by the police when she was collected from her house to bring his lawyer along…. she cannot now give the impression that she was denied access to her lawyer, she was free to do so and was so advised.”

Magistrate McPherson says after hearing the complainant, she excused her in her office to decide the issue and eventually found her in contempt. She further states that she informed the complainant about her order.

On her alleged lack of jurisdiction, she says “the magistrate has power to determine civil contempt. I only sentenced her to 7 days imprisonment but upon willingness to comply with the order she would be released and indeed she was released to days later because there was compliance.”

She adds “it is my position that the magistrate has the power to commit a contemnor through civil proceedings to prison so long the complainant proves his/her case beyond reasonable doubt,” McPherson cites Sections 35, 73 and 75 of the Subordinates Court Act which she says empowers a magistrate to enforce his/her orders among other things by committal to prison.

Section 35 states that any court which has jurisdiction to try any action against any party thereto shall have jurisdiction to issue against any party thereto any form of process in execution of its judgment in such action.

Section 73 reads “any person who willing fully disobeys or neglects to comply with an order of a Subordinates Court is guilty of contempt of court and shall upon conviction be liable to a fine of M500 or in default of payment to imprisonment for a period of six months.

McPherson maintains that contempt of court need not to be initiated by the DPP but says it can also be initiated by any other complainant. She says she was an impartial and independent court when she dealt with Marabe’s case.

According to her, contempt can be both criminal and civil in nature but the standard to prove remains the same.

Justices Sakoane Sakoane, Keketso Moahloli and Polo Banayane reserved judgment in the matter.

 

 

 

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