KWARAMBA v BHUNU NO 2012 (2) ZLR 358 (S)

Flynote

Court — contempt — what is — statement ascribing political motivation to court — such statement a clear contempt

Court — Supreme Court — jurisdiction — review powers — when may be exercised — need for an irregularity or misdirection to be alleged — concurrent jurisdiction with High Court — whether Supreme Court can order review of decision of decision of a High Court judge D

Legal practitioner — conduct and ethics — statements on matter which is sub judice — when statements may be made — statement ascribing political motives to the court — gross transgression of prohibition against making comments on pending matter — practitioner misrepresented by press — courses to follow

Headnote

The applicant was one of the team of legal practitioners representing 29 persons who were accused of murdering a police officer. The trial of the accused persons had commenced in the High Court. The applicant, on behalf of the accused persons, made a bail application, which the State opposed. The court, presided over by the respondent, reserved its judgment. The trial continued while awaiting judgment on the bail application. While judgment was pending on the bail application, an article appeared in a newspaper, stating the applicant had said that the law was not being applied fairly and that justice was being politicised because the accused belonged to a particular political party. The applicantadmitted being asked to comment on the manner in which the wheels of justice were turning in the matter and that he expressed disappointment at the lengthy stay of his clients in remand prison. He said that although the article was to some extent true, it contained several inaccuracies, which inaccuracies probably created the wrong impression in the minds of readers, including the presiding judge. The respondent, disturbed by the article, summoned all the legal practitioners in the matter to his chambers. There he expressed his concern over the contents of the article and asked the legal practitioners to comment. The applicant indicated to the respondent that the article was inaccurate and that there was no intention whatsoever on his part to attack the court or make adverse comments. He tendered his apology to the respondent if the wrong impression had been created. He alleged that the newspaper had misquoted him or misrepresented him. He assumed that the matter had been resolved, but when the respondent gave his decision on the bail application in court, he castigated the applicant for his communication with the newspapers, accusing him of "demonising and attacking the dignity and integrity of this court and the judiciary of this country in general". He described the applicant's remarks as being "ill conceived" and "malicious" and said that the applicant was bent on bringing the due administration of justice into disrepute. He concluded by describing the applicant as "dishonest, slanderous, contemptuous and unethical".

The applicant, aggrieved by the remarks, requested that a judge of the Supreme Court give directions in terms of s 17(h) or s 25(3) of the Supreme Court Act [Chapter 7:13] that a review of the matter be instituted.

Held, that before a judge of the Supreme Court issues directions in terms of s 25(3) of the Act, he has to be satisfied of the existence of an irregularity that needs determination or correction which has occurred. Generally speaking, an irregularity occurs when a judicial officer takes into account factors that he should not take into account or fails to take into account factors he should take into account in the process of the making of a determination the judicial officer is seized with. An irregularity also occurs where the law is misapplied or an incorrect procedure is followed. The court a quo was seized with a bail application. No misdirection or irregularity in the determination of the bail application was alleged. The respondent's remarks about the applicant were obiter.

Held, further, that ss 17(h) and 25 of the Act confer concurrent review jurisdiction on the Supreme Court with the High Court over inferior tribunals. What this means is that a Supreme Court judge, in the exercise of jurisdiction conferred by ss 17 and 25 of the Act, has the same review jurisdiction as a High Court judge. A judge cannot order the review of a judgment of another judge of the same jurisdiction. Thus, from a jurisdictional standpoint, the request was not competent.

Held, further, that the applicant did not seem to appreciate what is expected of him as a legal practitioner and an officer of the court. The remarks ascribed to him did not only scandalise the respondent but were also made while the matter was sub judice. A time-honoured practice which has crystallised into law prohibits the making of inappropriate statements on matters pending before the courts. The statements ascribed to the applicant grossly transgressed the sub judice rule and clearly constituted contempt of court, in that they scandalised the court by ascribing to it political motivation in its judgment. The inescapable inference is that the remarks were made not only to bring the court into contempt in the eyes of the public but also in an attempt to influence the outcome of the bail application and consequently the course of justice. The applicant was lucky that he was not prosecuted for contempt of court. He should have immediately issued a statement disassociating himself from the contents of the article and denying that he ever uttered the words ascribed to him by the newspaper. He should also have urgently sought audience with the judge to assure him that he never said the words ascribed to him. Instead, he only offered a wishy-washy explanation upon being asked about the matter.