Jailed Maseru woman takes fight to Appeal Court

RELEBOHILE TSOAMOTSE

MASERU – The legal battle between a Maseru woman, ’Mampeli Marabe and the Children’s Court Magistrate, Puseletso McPherson, has escalated to the Court of Appeal. Marabe has now asked the Apex court to invalidate the High Court (sitting as the Constitutional Court) judgment that her committal to prison, as ordered by Magistrate McPherson on October 6, 2020, was unlawful.

The Constitutional Court ruled on June 7 that her jailing was justified and that no law was contravened in effecting her arrest and subsequent committal to prison, but Marabe maintains that the magistrate blundered in ordering her committal.

She was jailed for failing to release her minor child to be with his father as per their arrangement and order of court. She (Marabe) served a two-day sentence before she was freed but later sued the magistrate for violating her “fair trial rights, liberty and incidental rights and freedoms.”

She also sought a declarator that Subordinates Courts have no civil jurisdiction to summarily commit any person to prison over contempt of court committed ex facie curiae (outside court) and that contempt of court is a criminal offence liable to be adjudicated by a Magistrate upon a formal criminal charge being presented with all the attendant criminal procedures plus the standard of proof beyond reasonable doubt.

The court refused to make the orders and instead commended the magistrate for jailing her.

“The learned magistrate should be commended and not condemned for upholding the dignity and effectiveness of her court,” reads the judgment in part.

The court went ahead to declare that, like superior courts judges, magistrates are immune from civil claims and criminal prosecutions for improper acts and omissions in their exercise of judicial power.

However, Marabe is having none of it and has appealed the judgment on numerous grounds including that the magistrate’s power to commit a person to prison are only criminal not civil.

She says the Apex Court erred and misdirected itself in declaring that Subordinate Courts have powers to entertain civil contempt.

By so declaring, she argues that the court took powers of the parliament by “creating non-existing magistrate powers and conferring the Subordinate Court extra-statutory or inherent powers and equal independence…”

In her constitutional challenge, Marabe has also demanded M500 000 constitutional damages against the magistrate for what she said was violation of her fair trial rights and personal liberty but the Constitutional Court ruled that the constitution sanctions deprivation of liberty for persons who disobey court orders.

“Errors made during the processing of holding contemnors accountable cannot found a civil claim for damages against a Magistrate,” Chief Justice Sakoane Sakoane said in the Court of Appeal judgment.

In raising judicial immunity as it did, Marabe argues that the court erred and misdirected itself. She says the court ought to have confined itself to the pleadings before it or held that the magistrate was not sued in her personal capacity in deciding to raise judicial immunity. She further contends that parties must have been asked to file additional arguments (heads of arguments) in order to address the legal point of judicial immunity.

The judges had also declared that Section 6 (1) of the constitution empowers magistrates to enforce any of their orders but Marabe maintains that the court misdirected itself in this regard.

She tells the court that “the court ought to have held that the Subordinate Court powers to commit a person to prison are only criminal powers and subject to the enabling statute i.e. Subordinate Court Act, 1983.”

The crux of her case is that her contempt was not proved beyond reasonable doubt and therefore her committal to prison was unlawful.

“The Court erred and misdirected itself by having held that Applicant’s guilt of contempt of court was proved beyond reasonable doubt absent a formal charge, Director of Public Prosecutions, witnesses’ statements and all other procedures safeguarding fair criminal trial,” she states.

Marabe says the magistrate used the low standard to prove her case and that in doing so, the magistrate 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 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 argued was unconstitutional and contended 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 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.”

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