CRI/634/2007
CRI/T/57/2007
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU:
REX
VS
ANTHONY CLOVIS MANYELI
JUDGMENT
DELIVERED BY THE HON. MRS JUSTICE K.J. GUNI ON THE 19™ NOVEMBER. 2007
1-PARTICULARS OF THE ACCUSED
The accused in this case is ANTHONY CLOVIS MANYELI. He is a Male Mosotho Adult of over (80) eighty years of age. He is a politician of many many years of experience in that field. He was a Minister of His Majesty's first independent Government when this Kingdom got its independence from Great Britain in 1965. Therefore his experience in politics is well over (40) forty years - making him a mature and well seasoned politician. He is the leader of NATIONAL INDEPENDENT PARTY (N.I.P.)
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CHARGE
He is charged here with the CRIME OF CONTEMPT OF COURT. The indictment is set out in these terms:-
''That:
(HEREINAFTER CALLED THE ACCUSED)
IS GUILTY OF THE CRIME OF
CONTEMPT OF COURT
IN THAT, whereas upon or about the 25th January 2007 the said accused brought an application to the High Court for a review of a decision of the Independent Sectoral Commission rejecting his challenge of the National Independent Party party list,
AND WHEREAS, on 31st January 2007, the High Court (MAHASE AJ) granted "default judgement" against the Independent Electoral
Commission and the Attorney General.
AND WHEREAS an appeal was lodged, under No. C OF A (CIV)1/2007, against the decision of the High Court to the Court of Appeal and in which appeal the accused was a respondent
AND WHEREAS the Court of Appeal, per the Honourable JUSTICE of Appeal M.M. RAMODIBELI delivered the judgement of the Court of Appeal on 21 February 2007, allowing the appeal and confirming the only, authentic party list was that submitted to the Independent Electoral Commission by the National Independent Party, and in which judgement the President of the Court of Appeal, the Honourable JP STEYN and the Honourable JUSTICE MAJARA concurred.
AND WHEREAS, upon or about the 2nd March 2007 and at or near Christie House and/or a place (to the Prosecutor unknown) in the Maseru Urban Area, and/or in the district of Maseru, the said accused during a "face to face" interview held and/or conducted by a Ms MATWAPELI RAMANOTSI, a reporter of a local newspaper, to wit: PUBLIC EYE, did wrongfully, unlawfully and with intent there and thereby to violate the dignity and respect of the said Honourable Mr JUSTICE RAMODIBELI, and/or the said President of the Court of
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Appeal, and/or the Honourable JUSTICE MAJARA, and/or the Court of Appeal, said the following in answer to questions by Mathapeli Ramanotsi.
"MATHAPELI RAMANOTSI: Then if there are some acts that support the judgement of the High Court what do you think are the reasons for the Appeal Court Judge to rule against the Judgement?
Accused: There could be many reasons for that. What JUSTICE RAMODIBELI did was a dear violation of the Law and therefore it was a crime that must be brought before Justice.
MATHAPELI RAMANOTSI: Did the President of the Appeal Court agree with the judgement passed by JUSTICE RAMODIBELI?
ACCUSED: Yes, which was a surprise to me because in a similar case of the same court in 2003, in a case between Thebe Motebang & Bereng Sekhonyana, P Steyn said:
"Having due regard also to the historical development, there is nothing in the legislative framework which would justify this court department (sic) from the dearly expressed injunction of the constitution, read with the National Assembly Election Act. of 1992 and the rules promulgated there under that no appeal to this court shall lie against the decision of the High Court dismissing an election petition. This court therefore does not have jurisdiction to adjudicate upon any aspect of this appeal. The constitution does not allow it to do so."
So, I am surprised that the he agreed with Justice Ramodibeli this time.
And thereby the said Accused did suggest that the Honourable JUSTICE RAMODIBELI and/or the Honourable President of the Court of Appeal and/or the Honourable JUSTICE MAJARA and/or the Honourable Court of Appeal is incompetent to a criminal degree and/or what it did was unlawful."
And the Accused did thereby commit the crime of Contempt of Court."
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WHAT IS THE CRIME OF CONTEMPT OF COURT
Definition
This is a common law crime - not governed by statute. In his invaluable criminal law book, the learned author CR SNYMAN, third Edition at page 310 defines the crime of CONTEMPT OF COURT as follows:-
"Contempt of Court consists in unlawfully and intentionally
(a) violating the dignity, repute or authority of a judicial body or a judicial officer in his judicial capacity
or
(b) publishing either orally or in writing information or comment concerning pending judicial proceedings which has the tendency to prejudice or interfere with the administration of justice in a pending judicial proceedings."
This learned author, further comments that this definition (set out above) is in material agreement with that in Hunt 185. The essential
elements of the Crime of Contempt of Court, are set out at page 171 SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE VOLUME II -COMMON LAW CRIMES, third Edition by JRL MILTON. This is the criminal law book which is commonly called or referred to as HUNT, because it was first edited by P M A HUNT. In this 1996 publication
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of Hunt, the essential elements are stipulated at page 171 as follows:-
"unlawfully (b) contempt (c) a judicial body (d) Mens rea. When reflecting back to the definition by C R Snyman, one immediately detects the material similarities in the main requirements which must be established in onder to secure conviction of the crime of contempt of court."
In this Kingdom, our very own criminal law writer, in the person of the late Honourable Mr Justice M.P. MOFOKENG (May his soul rest in peace), compiled our criminal law through cases. This important works are still being produced by Morija SESOTHO BOOK DEPOT even after the honourable judge's untimely demise. We are indebted to the publishers for making this great works available to- date. At page 393 of 1997 publication of CRIMINAL LAW AND PROCEDURE THROUGH CASES by the Honourable late Judge M P MOFOKENG, the definition of the contempt of court is simply quoted as follows:-
so long as the judge of this country holds office, any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority, is contempt of court."
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The fate Judge Mofbkeng, here was quoting STRATFORD A.C.J. [as he then was] in Re MACKENZIE 1933 A.D. 367 at 369. In this case STRATFORD A.C.J. was adopting the definition of Lord Russell in R V GRAY 1900, Q B at 40. At that time the common law and its principles, governed the CRIME OF CONTEMPT OF COURT, both in this Kingdom and in the REPUBLIC OF SOUTH AFRICA. The Kingdom of LESOTHO and the Republic of South Africa were once under the same colonial master which was the source of their common law. That is why the court decisions of superior courts in England, influenced the decisions of courts in the Kingdom of Lesotho and in the Republic of South Africa.
Presently the law of Contempt of Court in England as far as superior courts are concerned is governed by common law principles. At common law, contempt of court has been defined as a behaviour "involving an interference with the due administration of justice, either in a particular case or more generally as a continuing process" - Attorney General V Leveller Magazine LTD (1979) AC 440 per Lord Diplock at p 449. In BLACKSTONE'S CRIMINAL PRACTICE 1998, at paragraph B 14 .59 it is pointed out that it is not possible to provide an exhaustible list of the ways in which the offence can be committed, although a substantial number of typical examples are given at B14 . 71. DONALDSON Master of the Roll (MR) is quoted saying the following in Attorney-General V Newspaper Publishing pic [1988] CL. 333 at p. 368
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"The law of contempt is based on the broadest of principles, namely that the courts cannot and will not permit interference with due administration of justice. Its application is universal. The fact that it is applied in a novel circumstances.... is not a case of widening its application. It is merely a new example of its application."
The above description is an accurate state of affairs of the law of the contempt of court in this Kingdom. That is to say, anything done or said publicly with intent to lower the dignity of the court, is a contempt of court. The received law, such as this one - creating and governing the crime of contempt of court, is greatly influenced by the surrounding circumstances of the place or places where it is received and applied. It is strengthened or weakened by the habits and the way of life of the people under that received law. e.g. Basotho are respectful people [i.e. we respect ourselves, we respect each other. We respect our institutions. Most of all we pay great respect to the law and those in authority. Basotho respect courts and those people who work for and in the courts]. Perhaps that is why my search for reported cases on the subject was not successful. In the book by the Honourable Judge M P Mofokeng, there are no Lesotho cases to show exactly how and when that law is applied.
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4-THE CROWN CASE
The crown called three witnesses to testify in this case. The first witness for the crown, was an investigating officer in this case. He is one inspector Molaoa. He told this court that he read an article in the Newspaper "Public Eye" of the 2nd March 2007. As he read that article he formed an opinion that the article and or its contents, were contemptuous. He then and there decided that he should do something about that contempt. He took steps as the responsible police officer. He contacted his superior about the said article in the Newspaper - Public Eye of the 2nd March 2007. When speaking to his superior about the said article, he found that his superior is of the same view, that the said article is contemptuous. He [the witness] gave his superior the impression that he needs to see the Director of the Public Prosecution [hereafter referred to as the DPP] about that article. The witness did not go immediately to see the DPP. When he eventually did see the DPP, he found out in their discussion of that Newspaper article that they are of the same mind, or view - that the Newspaper article is contemptuous. The DPP proceeded to show the witness some document. This document is the statement which the DPP together with the Attorney General [hereafter referred to as A.G.] had made to the nation on Radio Lesotho. This witness had heard that radio broadcast. He was also given the letter to the leader of NIP - this accused. That letter and the statement of the DPP together with the A.G. contained the same sentiments or
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message. The witness read the letter. Both the letter and the statement expressed the same opinion - i.e. that the article in the Newspaper - "Public Eye" of 2nd March 2007 is a contempt of court. This witness in his own words told this court that he was satisfied that this article is contemptuous. All along the way, in his investigations or preparations to investigate the case, everybody he met coincidentally held the same points of view as him regarding the nature of the said article, e.g. his superior and DPP. This early satisfaction of the Investigation Officer may turn out to be a handicap - something which disabled him from doing thorough, further and proper investigations of the case.
PW2 - The second wrtness of the crown, is the actual reporter of the Public Eye Newspaper that published the offensively contemptuous article. She conducted the interview between herself and the accused. She told the court that during the interview she took the notes or made a draft of the article which she submitted to the editor. It is in the common cause that the article was written by the editor and approved for publication by the editor-in-chief - PW3 in this case. The reporter - PW2 - 'MATHAPELI RAMONOTSI told this court in her evidence in-chief that she cannot say the words used in the article - the subject matter of contempt, were those of the accused. She could not even claim they were her own. She told this court that it is the responsibility of the editor to put in his own words or otherwise as he or she sees fit any article which he or she writes
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for publication. In other words, it is the editor who wrote this article that determined the final choice of words and form used in the artide.
PW3, the Editor-in-chief of the Public Eye Newspaper - Mr THAI told the court that he approved the publication of the article in question, He did not write it. The article is written by one of the many editors employed at the newspaper. It is not alleged anywhere in the indictment that this accused wrote the offensive article. Therefore there would be no need on the part of the crown to attempt to prove that he is the author. The editor-in-chief in his evidence could not say which one of his editors wrote the subject matter of the contempt complaint This witness however admitted he did issue an apology in the Public Eye of 6th April 2007. He apologized for allowing or passing for publication this article in the Public Eye of the 2nd March 2007.
5 - THE ACCUSED'S CASE AS CANVASSED TO CROWN WITNESSES
When the charge was put to Mr Manyeli he pleaded not guilty. Throughout the crown case when every witness testified, it was put to all the witnesses that the accused deny the allegations levelled against him. He has from the beginning when he heard the allegations on the radio broadcast, sought through his attorney some
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clarifications with a view to draw to their attention [DPP and AG] the possible misinterpretation of his own expressed views. The accused admits that he has not apologised and he does not see the need to apologise, on the grounds that he is innocent of the charge levelled against him. PW1 - Investigating Officer was shown the letter to the DPP and AG from Khauoe & Co - the accused's attorneys of record. The Investigating Officer during his investigation, did not see that letter. He cannot say it was received at its intended destination. The crown is obliged to establish at least a prima fade case against the accused at this stage. The crown must at least place before court evidence that the accused did (1) the act complained of - Actus Reus (2) He did so with intent - Mens rea.
6 - APPLICATION FOR DISCHARGE
At the close of the crown case, the attorney for the accused Mr Khauoe applied for the discharge of the accused in terms of SECTION 175 (3) CRIMINAL LAW AND PROCEDURE Act 1981. This section provides:-
"If, at the close of the case of the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty."
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It appears without a doubt that this law - [Contempt of Court,] under consideration, is intended to protect the administration of justice from interference, intimidation, ridicule, and/or any violation of the dignity or repute of the court. The dignity of the court or that of the judge exercising his or her judicial function cannot be violated without the perpetrator of such violation, being appropriately dealt with in accordance with this law of contempt of court. The charge as set out shows that the dignity of the Court of Appeal and/or the dignity of the judges of the Court of Appeal has been violated. Looking at the definition and essential elements of the crime of the contempt of court, it is material that it must be the court or the judges whose dignity has been violated. This is in the common cause that such violation of the dignity was directed at the court and/or at the judges of the court The words used in the article are in themselves contemptuous. This seemed to be the general view of every reader who was called as a witness especially the editor-in-chief of the Newspaper in question. That is why when this was drawn to his attention he obliged with an apology.
The accused before court has not apologized. His reason for not apologizing is that those words are not his. There is no evidence
that he (the accused) actually said those offending words in the newspaper article complained of. The reporter - 'Mathapeli Ramonotsi
although she is the person who conducted the face to face interview with the accused, according to the headline in the
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newspaper, could not say those words are the ones spoken to her by this accused. She could not recall whether or not they are her own. She pointed out that the editor who writes articles for publication, edits and put the article in the best way as he sees fit. This witness could not say what has been edited. When asked a direct question "whether or not those words are those of the accused," she said she could not remember. She even appealed for assistance from the accused.
In this Section 175 (3) CRIMINAL PROCEDURE and EVIDENCE Act 1981, the court is given discretionary powers which it must exercise judiciously. I accept Mr Moleneaux's argument that where there is some evidence - and I must add, relevant and credible evidence, the court cannot discharge. Where there is no incriminating evidence at all, there must be extremely strong, compelling and sound reasons for the court not to discharge. REX V THOBALA 1981 (2) LLR 363.
The main and perhaps the only question which the court must ask itself is, what will serve best the interests of Justice? Is there a possibility that the case for the prosecution may be strengthened by the evidence of the defence? S V MPETHA & OTHERS 1983 (4) SA (C) AT 226/227 REX V KRTTZINGER & OTHERS 1952 (2) SA 401 AT 406.
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The crown should have placed before the court evidence in chief that the words complained of are those expressly used by this accused. The crown has not done so. It relies on the circumstantial evidence that, in that Newspaper, it is said that the reporter is conducting face to face interview with the accused, therefore words attributed in that artide, to this accused must be regarded as those of the accused, without any further evidence that the accused actually said those words himself. There is evidence that the interview may have been conducted both in Sesotho and English. The accused, as put to the crown witness by his attorney, will say those are not his words. He will further say that he used Sesotho throughout the interview except when he referred to the law and cases. PW3 told the court that there are many translators used at the Newspaper offices. If Mr Manyeli spoke Sesotho and the translator was engaged in order to publish the interview in English for this English Newspaper, could it be honestly said those offending words are the accused person's own. Without a direct evidence from a person who actually heard him use those words?
Where there is a number of accused persons charged together, there might be a ground to believe that one of the accused persons may incriminate the others. Where there is only one accused person who denies the allegation what chance is there that if the accused is put into the witness box will change his plea of Not guilty and his denial of all the allegations and admit, or confess that he committed the
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alleged crime? There must first of all be the case to strengthen before putting the accused in the witness box with the hope that he will strengthen the crown case. Where there is totally and completely no case, put against the accused, calling an accused to his defence is an exercise in futility.
The evidence in this case is circumstantial at best. The newspaper article is entitled "Manyeli Speaks his Mind." The court is urged to presume that whatever is attributed to Manyeli in that article is the truth of what he actual said despite the lack of direct evidence and in the face of vehement denials by the accused. Furthermore there is no evidence that the words in the article are the words in PW2's -[reporter's] draft. There are numerous possibilities that those words could be:
1 - Those of the editor who actually wrote the article;
2 - Those words could be of the translator who was used in order to produce the article in English;
3 - The choice of words could be that of the reporter.
Why should the court put the accused to his defence in those circumstances?
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The reporter who conducted the interview could not remember if those were the accused's own words; she sought the accused's assistance to remind her. The accused maintained his denial. PW2's own draft which she submitted to the editor, as the basis of the article in question could not be placed before the court. The editor who actually authored that article did not testify before court. As a result no prima fade case was placed before this court for the accused to answer. The investigating officer had not at all investigated this case. Had he attempt to investigate, he would have accepted the accused person's denial immediately when he confronted him. If he did not accept the accused person's denial, his first job should have been a visit to the Newspaper offices to interview not just the editor-in-chief and the reporter. He should have included the actual author of the article and the translator. He should have obtained the reporter's draft of the article for the purpose of showing the court that the violation was done by the accused. These omissions resulted with the dilemma we are facing now - there being no case at all placed before this court against this accused. Where there is no evidence or where the evidence placed before court is so discredited that it is not worthy of this court's consideration, the court must discharge the accused. REX V MATETE and OTHER 1977 LLR 262.
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The suggestion by the crown counsel that the accused person did not go to the newspaper to accuse it of misrepresentation cannot help to strengthen the assumption that because the article is entitled "Manyeli Speaks his Mind" the words in the article must be his. According to the evidence of the editor-in-chief, nobody ever comes to the offices of this Newspaper to complain, now or in the past about the Newspaper's misrepresentations.
There is no evidence that the accused committed the offence charged. There is no evidence that he might be convicted of any other offence on this present charge. In terms of SECTION 175 (3) I return a verdict of NOT guilty. The two assessors agree with this finding.
This court has returned a verdict of NOT guilty.
K.J. GUNI
JUDGE
For the Crown: Mr. D.P. Molyneaux
For the Accused: Mr. Khauoe
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