ConCourt absolves Children’s Court magistrate

. . . but aggrieved Maseru woman vows to fight on

RELEBOHILE TSOAMOTSE

MASERU – Children’s Court Magistrate Puseletso McPherson’s jailing of a Maseru woman, ’Mampeli Marabe, is justified, the Constitutional Court has ruled.

This is despite contentions by Marabe that her committal to prison was unlawful and that the magistrate overreached her powers when she jailed her, but the court says McPherson should be commended for going all out to enforce her order.

In its judgment, the court states that in punishing non-compliance of her order as she did, the judicial officer did so in the best interest of justice and acted in accordance with the supreme law, particularly Section 6 (1).

The section states that no one shall be arrested or detained unless authorized by law – in execution of the order punishing him for contempt of the court or of a tribunal and in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law.

McPherson had ordered the arrest and detention of Marabe for contempt of court sometime in 2020 but Marabe argued that the magistrate did not have powers to imprison her for contempt committed ex facie curie (outside court).

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

She, in turn, petitioned the Constitutional Court to nullify her detention and demanded constitutional damages against the magistrate. Marabe also requested “a declarator that the Subordinate Court has no civil jurisdiction to summarily commit any person to prison over contempt committed ex facie curiae.”

The court refused to so declare but instead ruled that all courts, (including Children’s Courts) have jurisdiction to enforce compliance with their orders and punish any disobedience.

“…The Constitution grants overreaching jurisdiction on every court of law to enforce compliance with its orders and to punish any disobedience. Section 73 of the Subordinate Courts Order of 1988 grants jurisdiction on Children’s Courts to do just that,” Chief Justice Sakoane Sakoane said in a judgment agreed to by judges Keketso Moahloli and Polo Banyane.

The court also said a magistrate does not need to await a formal charge from the Director of Public Prosecutions (DPP) to institute a criminal charge (contempt) as had been argued by Marabe.

Rather, the magistrate’s swift action in effecting her order received praises from the judges who said “the learned Magistrate should be commended and not condemned for upholding the dignity and effectiveness of her court.”

Marabe had argued that contempt of court is expressly outside the jurisdiction of the Subordinate Courts and that nothing in the Subordinates Court Act gives magistrates power to deal with a criminal offence of contempt of court or any criminal offence.

She maintained that magistrates’ powers to imprison are only civil in nature. In an affidavit, Marabe told the court that she was taken aback by Magistrate McPherson’s questioning on the day she ordered her imprisonment.

She said she was taken 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’s chambers, the judicial officer is said to have furiously asked her why she chose to close her phone, to which she replied that it was never closed.

The question, she said, was asked several times with the magistrate remarking that she now disrespects her like she disrespects her husband (3rd Respondent). When Marabe requested to have her lawyer present, she claimed that the magistrate responded “what kind of a thing is Nthontho?” and, instead, directed her to sit in one of the rooms in the building.

Subsequently, a policeman arrived and told her that he was directed to take her along with one other woman to prison for up to seven days over contempt of court. The magistrate effectively 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 proof in contempt of court is the criminal standard of beyond reasonable doubt.

“Using a lower standard of prove instead of a higher standard means that the liberty of the person accused of contempt is taken away 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 argued, was unconstitutional and contended that the magistrate’s decision to imprison her wearing a civil jurisdiction hat instead of criminal jurisdiction hat violates the principle of no punishment without law.

“For the magistrate who was angry with me to mero metu (roughly means impulsively) 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 added, “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.”

But the court disagrees with her prepositions. Judge Sakoane writes that judicial officers have authority to initiate contempt of court proceedings mero motu “because willful disobedience of, or non-compliance with, court orders undermines the authority, dignity and effectiveness of courts.”

In the case of the complainant, the judge made a finding that the procedure followed by the magistrate was correct and lawful and says Marabe deliberately defied the order.

“She was made aware of what her ex-husband was complaining about and afforded an opportunity to explain her conduct. She said she disobeyed the order because she enjoyed doing that. Thus, she confessed he guilt to willful disobedience of the court order.”

The judge goes further to affirm a procedure that judicial officers need to follow should they decide to mero motu initiate contempt proceedings.

“When acting mero motu, there are no hard and fast rules save that there be observance of the rules of natural justice, that is to say, suffice time should be afforded between the date of service of the order and the date of appearance to allow the person called to reply to prepare his case.”

Marabe is unhappy with the decision and told Public Eye that she will be appealing the decision.

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