Mancienne v Government of Seychelles (10 of 2004) ( of ) [2005] SCCA 11 (19 May 2005);


IN THE SEYCHELLES COURT OF APPEAL



In the matter between


MR. ROGER MANCIENNE - Appellant

(Editor of Regar Newspaper)


And


THE GOVERNMENT OF SEYCHELLES - Respondent


SCA No: 10 of 2004

============================================

Before: RAMODIBEDI, P., BWANA, J.A., HODOUL, J.A.


Hearing on: 3 May 2005

Judgment delivered on: 20 May 2005


Mr. A. G. Derjacques for the Appellant

Mr. A. F. T. Fernando for the Respondent as Amicus Curiae


J U D G M E N T


RAMODIBEDI, P.


[1] The question which lies at the heart of this appeal from contempt proceedings before Alleear CJ is a fundamental one and no doubt one that strikes at the very roots of the rule of law itself: does a person have a right, either at common law or under the Constitution of Seychelles (“the Constitution”), to ignore or defy an order of a Supreme Court Judge on the ground that it is void or illegal and therefore not binding on him? It will be noted at the outset that just such a situation has arisen in this case in the following circumstances:


[2] On 27 October 2004, Renaud ACJ in the Supreme Court mero motu issued an interim injunction against the Appellant in these terms:-


On its own motion this Court issues this Order of Injunction ordering and preventing the Editor of “Regar” Newspaper from publishing the contents and purports in whole or in part of a letter dated 19th October 2004 addressed to the Chief Justice by the three Judges of the Supreme Court. I believe that the publication of such contents and purports letter will be prejudicial to the best interest of and proper functioning of the Judiciary of Seychelles.


This Order shall remain in force until further order of this court”.


[3] It is common cause that, in defiance of this court order, the Appellant published or caused to be published in the Regar Newspaper, issue Vol. 13, No. 40 dated 29 October 2004 the letter in question.


[4] Consequent upon this publication the Appellant faced contempt of court proceedings before Alleear CJ on 7 December 2004. The learned Chief Justice found him guilty of contempt of court for having disobeyed the order made by Mr. Justice B. Renaud on the 27th October, 2004”.


[5] On 9 December 2004 the learned Chief Justice sentenced the Appellant to a fine of R40,000 or 30 days imprisonment in default of payment.


[6] The Appellant has appealed to this Court on the following grounds:-


(a) The Honourable Judge erred in law in failing to refer the case for Contempt of Court to the Constitutional Court of Seychelles as per Article 46 (7) of (Cap 42).


  1. The Honourable Judge erred in law in failing to hold that the ex-parte interim order of Justice Renaud made on the 27th day of October 2004 was void in law in accordance with Article 5 of (Cap 42) and further was illegal in terms of the Civil Procedure Code and the laws as pertaining from time to time and had no legal effect whatsoever and did not bind the Appellant not to publish the letter dated 19th October 2004 addressed to the Chief Justice by the three Judges of the Supreme Court.


  1. The Honourable Judge erred in law in failing to hold that the Supreme Court sitting of the 27th day of October 2004 did not have jurisdiction to order a restriction of the rights of the Appellant granted in Article 22 of Cap 42 and further that no laws derogating from or restricting those rights had been legislated.


  1. The Honourable Judge erred in law in failing to hold that the immediate Court hearing the Contempt of Court proceedings did not have jurisdiction to consider the said Contempt of Court charge in that the Appellant was protected by Article 22 of Cap 42 and no laws derogating from or establishing restrictions to his rights had been legislated.


  1. The Honourable Judge erred in law in failing to hold the Honourable Court sitting on the 27th day of October 2004 breach (sic) the Constitutional Rights of the Appellant namely Article 19(7) and Article 22 of (Cap 42).


  1. The Honourable Judge erred in law in failing to exercise his discretion to refer the Contempt of Court proceedings to the Attorney General.


  1. The Honourable Judge erred in law in failing to allow the Appellant to show cause on the merits and facts of the case why he should not be convicted for Contempt of Court. The Honourable Judge breach (sic) Article 19 (7) of Cap 42.


  1. The Honourable Judge erred in law in his finding that the Appellant was guilty of Contempt of Court.


Relief sought from the Seychelles Court of Appeal

  1. an order setting aside the conviction of the Supreme Court of the Appellant made on the 7th day of December 2004 whereby he was convicted for Contempt of Court.


  1. an order setting aside and dismissing the sentence of the Supreme Court made on the 9th December 2004 whereby the Appellant was sentenced to pay a fine of Rs40,000/-.


IN THE ALTERNATIVE
  1. an order setting aside and dismissing the orders of the Supreme Court made on the 7th and 9th day of December 2004 and further referring the said case to the Constitutional Court of Seychelles.


IN THE ALTERNATIVE

(d) an order setting aside and dismissing the exparte interim order of the Supreme Court made by Honorable Justice Renaud on the 27th day of October 2004”.

[7] In order to appreciate the reasons which motivated Renaud ACJ in issuing the injunction in question against the Appellant, it is necessary to revert to the facts and in some detail. These are contained in an affidavit filed by the learned Judge himself on 17 November 2004. Because of the importance of this affidavit in the determination of the instant matter, it is no doubt necessary to reproduce the entire contents thereof even at the risk of overburdening this judgment. The affidavit reads:-


I, Bernadin Renaud, Judge of the Supreme Court of Seychelles, of Victoria, Mahe, Seychelles, maketh oath and sayeth as follows:


1. That I am a Judge of the Supreme Court of Seychelles.


    1. That three Judges of the Supreme Court namely Justice Perera; Justice Karunakaran and myself submitted a memorandum dated 19th October 2004 setting out certain matters for discussion with his Lordship the Chief Justice on the afternoon of the same day.


3. That following the said meeting, His Lordship the Chief Justice undertook to take up the matters raised in the said Memorandum with the authority/ies concerned.


4. That a copy of the said memorandum was left with His Lordship the Chief Justice and each of the three Judges had a copy thereof.


  1. That I was appointed to act as the Chief Justice during the absence of the incumbent Chief Justice from Seychelles, for the period of 27th October 2004 to 2nd November, 2004.


  1. That on Wednesday 27th October, 2004 at about 1.30 p.m. I was in my Chambers when Attorney-at-Law Mr. Anthony Derjacques sought and received audience with me.


7. That during the said audience Attorney-at-Law Mr. Derjacques showed me what appeared to me to be a photo-copy of the Memorandum referred to above dated 19th October, 2004 bearing the signatures of Justice A. R. Perera; Justice D. Karunakaran and my own.


8. That Attorney-at-Law Mr. Derjacques further stated to me that as one of the Legal Advisers of REGAR newspaper he had been instructed by its Editor, that before publishing the said Memorandum in the REGAR newspaper, to verify from me, whether the said Memorandum was authentic.


9. That I informed Attorney-at-Law Mr. Derjacques that it was indeed so.


  1. That I impressed on Attorney-at-Law Mr. Derjacques that the said Memorandum was supposed to be privy to four persons only, namely the Chief Justice; Justices Perera; Karunakaran and myself and was not meant to be made public and that its publication could be scandalous and undermine public confidence in the Judiciary.


11. That I further enquired from Attorney-at-Law Mr. Derjacques how the Editor of the REGAR newspaper came in possession of a copy of that private document.


12. That in answer to my above query, Attorney-at-Law Mr. Derjacques replied that the Editor of REGAR newspaper has his own sources of information and did not elaborate further as to the provenance of that particular document.


13. That I emphasized to Attorney-at-Law Mr. Derjacques not to cause the said Memorandum to be published, as he had already indicated to me that it was the intention of Editor of REGAR newspaper to do so.


  1. That Attorney-at-Law Mr. Derjacques would not give me such an undertaking that the Editor would not to go ahead with his intended publication of the said Memorandum.


  1. That upon reflection, and in my capacity as Acting Chief Justice, in order to prevent that the Institution of the Judiciary of Seychelles be scandalized and in order to maintain public confidence in the administration of justice, I issued an Order of Interim Injunction on the Editor that same afternoon, ordering him not to publish the purports and contents of said Memorandum “until the further order of this Court”. (Copy of Order attached).



16. That in disobedience and defiance of the said Order of Interim Injunction made by the Supreme Court, the Editor of the REGAR newspaper went ahead with the publication of the said Memorandum, together with a copy of the Court Order as well as an article purporting to justify his action to do so, in the front page of the REGAR newspaper issue Vol. 13 No. 40 (copy attached).


17. That the action of the Editor of the said newspaper in disobeying and defying the Supreme Court’s Order of Interim Injunction, amounts to a Contempt of Court.


18. That I verily believe that, in order to maintain the dignity, respect and prestige of the Court, it is necessary that the Editor of REGAR newspaper should be called upon to show cause why he should not be dealt with for the said Contempt of Court.”



[8] It requires to be noted at the outset that the Appellant neither filed an affidavit nor gave viva voce evidence in the matter. It follows that the allegations of facts deposed to by Renaud ACJ in his affidavit were not met in point of substance or at all. Therefore they stand as uncontested facts. This Court must accordingly proceed on the basis of the correctness of these facts in the determination of this matter.


[9] Before going further, it is no doubt convenient to comment on the approach adopted by the learned Attorney General, Mr. Fernando, in this matter. Although admittedly served with the papers, he did not make any appearance in the court below. On appeal before us, however, he has appeared as amicus curiae and made submissions as such.


As I understand his submission, the learned Attorney General concedes that “technically there was an order which was flouted” by the Appellant. He, however, submits that the Appellant should not have been convicted of contempt of court. In this regard, he aligns himself fully with the submissions made on behalf of the Appellant and does so seemingly with more passion. It is thus unnecessary to consider his argument separately from what follows below. But two of his complaints deserve special mention at this stage, namely:-


(1) that the Appellant was not called upon to plead to the charge in violation of section 181 (1) of the Criminal Procedure Code (“the Code”) and


(2) that it was not proper for the learned Chief Justice to act on his own motion in the matter but that he should have referred the matter to the Attorney General.


[10] As regards the first complaint, section 181 (1) of the Code reads as follows:-


181. (1) The substance of the charge or complaint shall be stated to the accused person before the court, and he shall be asked whether he admits or denies the truth of the charge.”


It is necessary to bear in mind, however, that section 181 of the Code applies to offences under the Penal Code which does not have the offence of contempt of court. This is so in terms of section 3 of the Code which reads as follows:-


3. (1) All offences under the Penal Code shall be inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.


  1. All offences under any other law shall be inquired into, tried and otherwise dealt with according to the same provisions, subject, however, to any enactment for the time being in force regulating the manner or place of inquiring into, trying or otherwise dealing with such offences.


(3) Notwithstanding anything in this Code contained, the Supreme Court, may, subject to the provisions of any law for the time being in force in Seychelles, in exercising its criminal jurisdiction in respect of any matter or thing to which the procedure described by this Code is inapplicable, or for which no procedure is so prescribed, exercise such jurisdiction according to the course of procedure observed by and before the High Court of Justice in England.


In my view, the words “subject to the provisions of any law for the time being in force in Seychelles” are a reference to the common law offence of contempt of court. Construed in this way, it follows that the procedure prescribed by section 181 (1) of the Code is “inapplicable” to contempt of court proceedings which in turn have their own summary procedure at common law. Accordingly, I conclude that the learned Attorney General’s complaint in question is, with respect, misplaced.


It is for that matter common cause that the Appellant was duly served with a rule nisi which read in part as follows:-


AND WHEREAS you acted in wilful disobedience and defiance of the said Order of interim Injunction, by causing the publication in your newspaper, namely “REGAR” in your issue Vol. 13 No.40 dated 29th October 2004 of the document referred to in the said Order,


AND THEREBY, your said action and behaviour render you liable to be dealt with for contempt of the Honourable Supreme Court,


AND TAKE NOTICE THAT you are required to be present in person before the Honourable Supreme Court on 19th day of November, 2004 at 2.00 and show cause why you should not be dealt with for contempt of court.”


[11] The second complaint of the learned Attorney General is equally without merit. The learned Chief Justice himself dealt with it in these terms:-


The order of Judge Renaud was made on the 27th October, 2004. The respondent published the Memorandum two days later, i.e. on the 29th October 2004. The Court waited until the 17th November 2004 before invoking its inherent jurisdiction deriving from the common law in requiring the respondent to show cause why he should not be dealt with for contempt of court. Would it have been reasonable for the court to wait indefinitely for the Attorney General to exercise his prerogative of instituting criminal proceedings for contempt against the respondent? Would it be reasonable for the court to allow its orders to be flouted and await indefinitely for an action to be taken by the Attorney General against the respondent? Does not the inaction of the Attorney General for 18 days evince clearly that it was not his intention to institute criminal proceedings for contempt against the respondent. In the present circumstances this Court is well able to take action against anyone who disregards or defies its orders. Moreover, the Court should never be at the mercy of anyone.”


It is well established that superior courts of record have jurisdiction to deal summarily with contempts both in the face of the court and out of court.


It is true, as Archbold, Criminal pleading, Evidence and Practice, 39th Edition at paragraph 3457, observes, that the power to act of its own motion should only be used by the court when it is urgent and imperative to act immediately and that “[i]n all other cases the court should leave the Attorney General or aggrieved party to move to commit.”


It requires to be stressed, however, that, subject to the provisions of Article 46 (7) of the Constitution, the court obviously has a discretion whether or not to refer the matter to the Attorney General depending on the circumstances of each case.


[12] It is no doubt appropriate to add at this stage that equally without merit is the Appellant’s own complaint as contained in ground 2 (g) of his grounds of appeal to the effect that he was not allowed to show cause on the merits why he should not be convicted of contempt of court. The rule nisi referred to in paragraph [10] above precisely informed him to show cause in that regard. Indeed the record confirms on page 5 thereof that the learned Chief Justice offered the Appellant the opportunity to file an affidavit. He chose not to do so and cannot now be heard to complain. In this regard Mr. Derjacques for the Appellant is recorded as having addressed the court as follows:-


Your Lordship, in these hearings, whereby Mr. Mancienne is caused to show cause, I have 6 propositions to place before you. I would seek to address on 4 of these 6 propositions and then call upon a Ruling, and if I do not succeed in any of the 4, then I would humbly request that then we can call Mr. Mancienne to answer in the box, on facts and on his views, and why he went on to publish that letter signed by the 3 Justices on the 19th October 2004, in his Edition of the 29th October 2004.


Court: But there is no need for that, he can swear an Affidavit.


Mr. Derjacques: Yes. He has not sworn an Affidavit because he arrived yesterday, from his trip to overseas.


Court: Yes. But there is no need to go in the box.”


Contempt of Court


[13] It is generally recognized that the concept of ‘Contempt of Court’ is of ancient origin. Indeed when Alleear CJ in the court below said that “the term Contempt of Court is of ancient origin having been used in England certainly since the thirteenth century and probably earlier”, he was, I hasten to observe, quoting directly from the speech of Lord Ackner in Attorney General v Times Newspapers Ltd and another [1991]2 All ER 398 (HL) at 406. In tracing the historical development of the concept of contempt of law, the learned Law Lord expressed himself as follows:-


the term ‘contempt of court’ is of ancient origin having been used in England certainly since the thirteenth century and probably earlier. The term has been criticized as inaccurate and misleading, suggesting in some contexts that it exists to protect the dignity of the judges. Over 100 years ago Bowen LJ explained in Re Johnson (1888) 20 QBD 68 at 74:


The law has armed the High Court of Justice with the power and imposed on it the duty of preventing … any attempt to interfere with the administration of justice. It is on that ground, and not on any exaggerated notion of the dignity of individuals that insults to judges are not allowed. It is on the same ground that insults to witnesses or to jurymen are not allowed.’


Nearly 70 years ago a similar comment was made by the Lord President (Clyde) in Johnson v Grant 1923 SC 789 at 790. He said:


The phrase “Contempt of Court” does not in the least describe the true nature of the class of offence with which we are here concerned … The offence consists in interfering with the administration of the law; in impeding and preventing the course of justice … It is not the dignity of the Court which is offended – a petty and misleading view of the issues involved – it is the fundamental supremacy of the law which is challenged.’


Approaching 50 years later in Morris v Crown Office [1970]1 All ER 1079 at 1087, [1970]2 QB 114 at 129 Salmon LJ observed:


The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented …’


Shortly thereafter Lord Cross of Chelsea in A-G v Times Newspapers Ltd [1973]3 All ER 54 at 83, [1974] AC 273 at 322 commented:


‘… “Contempt of Court” means an interference with the administration of justice and it is unfortunate that the offence should be continued to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. Nowadays when sympathy is readily accorded to any one who defies constituted authority the very name of the offence predisposes many people in favour of the alleged offender. Yet the due administration of justice is something which all citizens, whether on the left or the right or in the centre, should be anxious to safeguard’.


In the same year the Report of the Committee on Contempt of Court (Cmnd 5794) (the Phillimore Committee) presented to Parliament in December 1974 stated in its very first paragraph:


The law relating to contempt of court has developed over the centuries as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally’.


More recently Lord Diplock in A-G v Leveller Magazine Ltd [1979]1 All ER 745 at 749, [1979] AC 440 at 449 thus summarised the position:


‘… although criminal contempt of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court.”


[14] The speech of Lord Oliver of Aylmerton in the same case also merits quotation. He said this at page 413:


My Lords, the inherent jurisdiction of the superior courts of record to ensure the effective administration of justice by punishing contempt of court has been developed by the common law over centuries. It is as essential as it is ancient, for unless litigants can be assured that the rights which it is the duty of the courts to protect can be fairly determined and effectively protected and enforced the system of justice necessarily ceases to command confidence and an essential foundation of the structure of civilised society is undermined. The term ‘contempt of court’ is, perhaps, a less than happy description of the concept, for it can only too easily be, and frequently is, represented as a judge-made device for the preservation of the judicial amour propre. As Salmon LJ observed in Jennison v Baker [1972]1 All ER 997 at 1001, [1972]2 QB 52 at 61:


The inherent power of the judges of the High Court to commit for contempt of court has existed from time immemorial. “Contempt of Court” is an unfortunate and misleading phrase. It suggests that it exists to protect the dignity of the judges. Nothing could be further from the truth. The power exists to ensure that justice shall be done. And solely to this end it prohibits acts and words tending to obstruct the administration of justice. The public at large, no less than the individual litigant, have an interest and a very real interest, in justice being effectively administered. Unless it is so administered, the rights, and indeed the liberty, of the individual will perish”.


[15] It is further salutary to note that the common law rule on contempt of court was recognized by the European Court of Human Rights in Sunday Times v UK A30 (1979) as being in accordance with Article 10 (1) (2) of the European Convention on Human Rights. That Article is on freedom of expression and it reads:-

Article 10

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprise.


  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure or information received in confidence, or for maintaining the authority and impartiality of the judiciary”.


[16] As I read them, the authorities all come to the proposition that the need to keep committal proceedings alive is justified by the fact that there can be no rule of law if the dignity and authority of the courts as well as their capacity to carry out their functions are not always maintained. Put positively, the process of contempt of court is an indispensable tool in terms of which the courts are able to dispense justice effectively. It is hardly necessary to stress that where courts lack the necessary integrity and dignity for them to discharge their functions there will be less respect and therefore less compliance by members of the public in general to their orders. To prevent this is the fundamental purpose of the process of contempt of court. Indeed it goes without saying that it is in the public interest to maintain the integrity and dignity of the courts without which the rule of law would collapse. As John Lock once said, where the rule of law ends tirany begins.


Jurisdiction

[17] As previously alluded to in paragraphs [11] and [14] above, superior courts of record, such as the Supreme Court is, have inherent jurisdiction at common law to punish contempt of court as a means of ensuring the effective administration of justice. That jurisdiction is as old as the English common law itself.


[18] The provisions of s.4 of the Courts Act (Cap 52) with regard to the jurisdiction and powers of the Supreme Court also bear reference. This section reads:-


4. the Supreme Court shall be a Superior Court of Record and, in addition to any other jurisdiction conferred by this Act or any other law, shall have and may exercise the powers, authorities and jurisdiction possessed and exercised by the High Court of Justice in England”. (My own emphasis).


In my judgment, I can see no justification in construing the terms “in addition to” and “any other law” other than as including the common law. It is for that matter a sound rule to construe a statute in conformity with the common law rather than against it, except where the statute in question is clearly intended to alter the common law. On this construction, therefore, s.4 of the Courts Act gives power to the Supreme Court to punish contempt of court as is known at common law. To that end, therefore, the section recognises and maintains the common law concept of contempt of court.


Defying a court order

[19] As will be recalled from what is stated in the preceding paragraphs, it is common cause that the Appellant defied the order of Renaud ACJ not to publish the letter in question. Now, the stage is no doubt opportune to answer the question posed in paragraph [1] above namely whether a person is entitled to ignore or defy an order of a Supreme Court Judge on the ground that such order is void or illegal and therefore not binding on him?


[20] At the outset, it will be noted that there are two schools of thought on the point.


(1) One school of thought is to the effect that an unlawful order of court is a nullity and may simply be ignored without any need to set it aside formally. That was the position in the South African case of S v Absalom 1989 (3) SA 154 (A) at 166. Therein Grosskopf JA expressed himself as follows:-


the judgment of a court having no jurisdiction need not be set aside formally; it is a nullity, and may simply be ignored”.


The difference between R v Absalom and the instant case, however, is that in the former case the court had no jurisdiction at all in making the order that it did. By contrast, it cannot seriously be argued that Renaud ACJ had no jurisdiction to issue an injunction in the special circumstances of the case and in particular, having regard to the uncontested contents of paragraphs 10 and 15 of his affidavit as fully set out above.


(2) Another school of thought is succinctly expressed by Halsbury’s Laws of England, Vol. 9 page 35 para 55 in the following terms:-


Orders improperly obtained

The opinion has been expressed that the fact that an order ought not to have been made is not a sufficient excuse for disobeying it, that disobedience to it constitutes contempt, and that the party aggrieved should apply to the court for relief for compliance with the order”.


True enough, a further point is made in the Halsbury’s Laws of England that on an application to enforce an order irregularly made, the Court will give the respondent the benefit of the fact that the order is irregular. It will be remembered, however, that we are here not dealing with an application to enforce the order of Renaud ACJ. Nor is this Court sitting on appeal against the order in question since it was never appealed from. On the contrary, that order has already been effectively defied by the Appellant. Publication that was sought to be prevented was effected nonetheless and there is therefore nothing left to enforce. What remains, if one follows the second school of thought referred to above, is whether contempt of court was committed and the resultant punishment if it is sustained. It is indeed right to say that it is precisely at this point that the proponents of the first school of thought referred to above, as advocated for by the Appellant, get it completely wrong, in my view. They pay no regard to the due process of appeal or review where one is aggrieved by a court order. Instead, they simply advocate for confrontation and defiance which are no doubt a recipe for chaos in a democratic peace loving society.


[21] Writing on the implications of an order being “void” as claimed by the Appellant, H. M. Seeravai: Constitutional Law of India, further drives the point home in the following words:-


To say that an order passed in violation of the principles of natural justice is void or a nullity requires clarification. If e.g., Ridge had not challenged his dismissal by an action, then, although the order was void or nullity, it would have had full legal effect as if it were a valid order. Secondly, in certain situations, a void order has immediate effect on the rights of a person or on his right to property, so that unless the order is set aside, the injury suffered cannot be remedied. A judge who convicts a person without jurisdiction, passes an order which is void, but the accused who has been sent to prison must take proceedings to set aside the order if he is to regain his liberty. Similarly, a race horse owner prevented from running his horse on the race course by an order passed against him in violation of the principles of natural justice must take necessary steps to set aside the order if the injury caused by the order is not to be effective. It is submitted that Lord Morris in the passage set out in para 16.160 above stated the proposition correctly. The order is voidable in the sense that if it is not challenged, it will remain as effective as a valid order. But if the order is challenged, then it is voidable in the special sense that the verdict of the court is awaited. If the court finds that the order violates the principles of natural justice, then, on that finding being made, the order is void.”


[22] Archbold: Criminal Pleading, Evidence and Practice 2004 at page 2407 adds his voice in the following uncompromising terms:-


“To disobey an order of court properly made is a contempt.”


[23] It is instructive to note the approach of the Constitutional Court of South Africa to disobedience to court orders in S v Mamabolo 2001 (3) SA 409 CC at 438. That was a case in which the appellant was summarily tried and sentenced for contempt of court in the Transvaal High Court arising from his comments concerning an order of that court that he had published. At paragraph [65] thereof the court said this:-


[65] It would have been a very serious matter indeed, calling for speedy and decisive action, if the order had actually been defied. The spectre of executive officers refusing to obey orders of court because they think they were wrongly granted is ominous. It strikes at the very foundations of the rule of law when government servants presume to disregard orders of court. What the most appropriate form of action would have been is a matter for speculation and need not be pursued”.


These remarks appeal to me as being in harmony with the rule of law and are as such remarks that I am happy to follow. Similarly, it would be a sad day for Seychelles, if not a complete disaster, in so far as the rule of law is concerned, if journalists or members of the news media were to be allowed to defy court orders if they perceived them to be wrong. It is correct to say that the decisions of a South African Court, like the decisions of any foreign jurisdiction, are not binding on this Court. They are, however, of persuasive value more especially as they come from a Commonwealth country such as ours. It requires to be noted in this regard that the Constitutional Court of South Africa is the highest Court in that country on constitutional matters. Eleven Judges form a quorum. It speaks volumes then that the decision in S v Mamabolo was unanimous.


Another significance of S v Mamabolo lies in the fact that the Constitutional Court recognised the need to maintain the sanction of contempt of court in order to protect the dignity and authority of the courts in upholding the rule of law.


[24] Snyman: Criminal Law – 2nd Edition at page 343 throws further light on the issue of disobedience to court orders. He writes:-


Generally, a person may not refuse to obey an order of court merely because the order has been wrongly made. If he were entitled to refuse to obey such an order, it would be seriously detrimental, not completely fatal, to the authority of the court. He must first obey the order and subsequently seek redress, if any by lawful means, such as appeal or review. It is submitted, however, that this general rule cannot be universally applied: blind compliance with an obviously unlawful command which has been issued mala fide (a most unlikely event, yet not an impossible one) would itself tend to weaken respect for the administration of justice.”


It has not been suggested in the instant matter, nor could it be, that the court order issued by Renaud ACJ was issued mala fide. On the contrary, and as has been pointed out previously, it was issued for a perfectly legitimate purpose of protecting the integrity, dignity and authority of the court by prohibiting a publication undeniably aimed at scandalising the court. Needless to say that as custodians of the Constitution, Judges have a duty to protect the Constitution at all times. It follows that Renaud ACJ acted honourably in the circumstances. He did not act in his own personal interest but, as I repeat, in defence of the dignity and well-being of the Court. He confirms this in paragraph 10 of his affidavit. It will, for that matter, be realised that the learned Acting Chief Justice faced a difficult and unprecedented situation whereby the Appellant was threatening to publish the contents of a private, and no doubt confidential, letter between the Chief Justice and the Supreme Court Judges. Part of the letter in question reads as follows:-


Independence of The Judges And Magistrates


We are presently experiencing an unprecedented situation where the Registrar is treating the Judges and Magistrates as his subordinate administrative officers. This is an affront on the dignity of the posts we hold and our independence as Judges.


In the meantime we request that


(1) With immediate effect, all personal files of Judges and Magistrates be kept and maintained by the Secretary to the Chief Justice or such other officers in a “private office of the Chief Justice” to be created.


(2) That all administrative matters, including the use of Judges cars, fuel, repairs, etc and payment of telephone bills be handled by the Chief Justice’s private office. Decisions in respect of those matters to be taken by the Chief Justice in his capacity as Head of the Department.


(3) Under no circumstances should the Registrar contact any Judge or Magistrate on any matter, except through the Chief Justice’s private office. The Judges and Magistrates will do the same when dealing with the Registrar.


(4) Registrar to be solely responsible for lapses on the part of the staff in respect of Court matters, such as failure to carry out Court Orders, issuing of summons, etc. He will be liable to be summoned in open Court to explain any such lapse or failure, personally and not by delegation.”


In my view, the scandalous and damaging nature of the letter to the integrity and dignity of the Court is self-evident. It represented an ugly standoff between the Registrar and the three Judges of the Supreme Court. The three Judges’ complaint of being treated as being “subordinate administrative officers” could, in my opinion, only bring the Court into disrepute if made public.


[25] It will be noted that the Appellant has not appealed against Renaud ACJ’s order in question as was his right to. In a democratic state priding itself with the rule of law as Seychelles is, we can ill-afford people defying court orders simply because they perceive them to be wrong. If such a situation were allowed to prevail, chaos would reign. Obedience to court orders would depend entirely on the whims of individuals and, as I say, the administration of justice itself would collapse.


[26] In this connection, I am in full agreement with the remarks of the Irish Judge namely, Judge Walsh, in his minority judgment in the European Court of Human Rights in Goodwin v The United Kingdom, case No. 16/1994/463/544. The learned Judge said this:-


The applicant claims that because he does not believe it (information ordered to be disclosed) was stolen he can justify his refusal to comply with the court order made in his case. His attitude and his words give the impression that he would comply if he believed the document in question had been stolen. He is thus setting up his personal belief as to truth of a fact which is exclusively within the domain of the national courts to decide as a justification for not obeying the order of the courts simply because he does not agree with the judicial findings of fact.


It does not appear to me that anything in the Convention permits a litigant to set up his own belief as to the facts against the finding of fact made by the competent courts and thereby seek to justify a refusal to be bound by such judicial finding of fact. To permit him to do so simply because he is a journalist by profession is to submit the judicial process to the subjective assessment of one of the litigants and to surrender to that litigant the sole decision as to the moral justification for refusing to obey the court order in consequence of which the other litigant is to be denied justice and to suffer damage. Thus there is a breach of primary rule of natural justice – no man is to be the judge of his own cause.”


[27] It follows, in my judgment, that, as a court of unlimited jurisdiction, the orders of the Supreme Court stand until they are set aside by this Court whether they are right or wrong. In this regard it must be emphasised strongly that it cannot be otherwise with a court of unlimited jurisdiction.


[28] Giving full weight to the aforementioned considerations, I have come to the inescapable conclusion that the Appellant had no lawful justification to defy the court order in question and that his flagrant disobedience of the order amounted to contempt of court. He was therefore correctly convicted.


[29] The conclusion reached in the preceding paragraph renders it strictly unnecessary for me to deal with the other grounds of appeal especially on the constitutional issues raised. Since, however, these issues are important not only to the Appellant and the news media but also to the members of the public, it is necessary to give a brief guideline.


[30] The Appellant’s main complaint, as I understand it, is that his constitutional right to freedom of expression as enshrined in Article 22 of the Constitution was infringed in the sense that both Renaud ACJ and Alleear CJ dealt with the matter notwithstanding the fact that the Appellant was protected by the Article in question and in circumstances where no laws derogating from or restricting the right in question had been legislated.


[31] To understand this contention, it is necessary to have regard to the provisions of Article 22 of the Constitution. It reads as follows:-


22. (1) Every person has a right to freedom of expression and for the purpose of this article this right includes the freedom to hold opinions and to seek, receive and impart ideas and information without interference.


(2) The right under clause (1) may be subject to such restrictions as may be prescribed by a law and necessary in a democratic society -




  1. for preventing the disclosure of information received in confidence;


  1. for maintaining the authority and independence of the courts or the National Assembly.”


[32] As a starting point, it must be stressed that Article 22 on the right to freedom of expression is modelled on Article 10 of the European Convention on Human Rights as fully set out in paragraph [11] above. The remarks of the European Court of Human Rights in Handyside v UK A 24 para 49 (1976) are therefore apposite. The court said this in interpreting Article 10 of the Convention:-


Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or ideas that are favourably received or regarded as inoffensive but also to those that offend, shock or disturb the state or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”


[33] In my view, the fundamental importance of the right to freedom of expression and of the role of the press and mass media in protecting such right as primary agents of the dissemination of information and ideas cannot be stressed strongly enough in an open democratic society such as ours. However, one must always bear in mind that the right to freedom of expression is not absolute. Therein lies the test. Indeed it must always be realised that the right to speak includes the right not to speak. But more importantly, the right must obviously be considered in conjunction with other competing rights and values equally necessary in an open democratic society. The court’s task, therefore, in interpreting Article 22 of the Constitution involves balancing all the competing rights and values.


[34] That the right to freedom of expression is not absolute is clear from the wording of clause 22 (2) of the Constitution itself. This clause plainly restricts or limits the right in question for a variety of reasons as may be necessary in a democratic society. Of particular relevance to this case are restrictions or limitations contained in clause 22 (2) (c) and (d) of the Constitution namely –


(c) for preventing the disclosure of information received in confidence; and


(d) for maintaining the authority and independence of the courts or the National Assembly.”


[35] Now, it will be noted that the high-water mark of the Appellant’s case both in the court below and in this Court has always been that “no laws derogating from or establishing restrictions to his rights had been legislated.” In my view, this submission has no merit and can quickly be disposed of by reference to clause 22 (2) of the Constitution itself. For convenience, it will be recalled that that clause reads:-


(2) the right under clause (1) may be subject to restrictions as may be prescribed by a law and necessary in a democratic society.” (My own emphasis).


In my opinion, the words “as may be prescribed by a law” are not just an empty rhetoric. They are clearly designed to serve a purpose which is this, namely, to include any law either statutory (such as s. 4 of the Courts Act) or the common law that may be necessary in a democratic society for protection of the values set out in sub-clauses (2) (a) (b) (c) (d) (e) and (f) of Article 22. Since the common law of contempt of court obviously preceded the enactment of the Constitution, Article 22 (2) must therefore be interpreted purposively as a saving clause to the common law. In this regard, it is indeed important to bear in mind that the word “law” is defined in section (1) of the Principles of Interpretation in Schedule 2 of the Constitution to include “any instrument that has the force of law and any unwritten rule of law”. In so far as this case is concerned, the saving clauses in question are contained in sub-clause 2 (c) and (d) of Article 2 which in turn provide for the prevention of disclosure of information received in confidence, as in this case, and for maintenance of the authority and independence of the courts or the National Assembly. That the concept of contempt of court is essential to protect these constitutional values and in turn the rule of law is self-evident from what is stated above.


[36] Similarly, it follows from the aforegoing considerations that not only does the Constitution itself contemplate and indeed, by necessary implication, recognise contempt of court but the infringement placed by contempt of court on the right to freedom of expression is justifiable in an open democratic society. It is for that matter in the public interest that the integrity and dignity of the courts be maintained through retaining the process of contempt of court as has happened from time immemorial. See S v Mamabolo (Supra).


[37] The Appellant’s complaint that the learned Chief Justice erred in law in failing to refer the case for contempt of court to the Constitutional Court of Seychelles as per Article 46 (7) of (Cap 42) is equally without merit. The learned Chief Justice dealt with the issue in this way:-


This court would have already acceded to the request if the respondent had not yet exercised his right under article 22 (1) of the Constitution. In the present case the respondent has already exercised his right of expression by publishing in Regar of the 29th October 2004 Vol 14, No. 40 the Memorandum which the interim order or injunction had sought to prohibit albeit temporarily. Admittedly, if in future a similar situation arises the person affected by an interim order, like the one made by Mr. Justice B. Renaud, can before exercising the right under Article 22 (1) (supra) seize the Constitutional Court and invoke its jurisdiction and seek a ruling from that Court in terms of Article 22 (1). That would be perfectly in order because the respondent could then argue that his right to freedom of expression is being curtailed by the said order.


Having already violated the order by exercising his right to inform and impart information under Article 22 (1) (supra), the respondent cannot now complain that his right to freedom of expression is being curtailed by the order. The right under Article 22 (1) can be said to be curtailed by an order of injunction if it is not yet exercised. This court therefore cannot at this point accede to the request of Counsel for reference of this matter to the Constitutional Court because such request is now frivolous.”


The approach of the learned Chief Justice cannot be faulted. Indeed, having taken the law into his own hands and thus effectively exercised the right in question, the Appellant himself made referral of the so called constitutional issue to the Constitutional Court merely academic. It is trite that courts of law are disinterested in academic situations.


[38] It is no doubt appropriate to conclude the judgment on this issue with the following remarks of Lord Donaldson in his speech in the leading English case of X Ltd v Morgan - Grampian [1991] 1 AC 1 (HL) at 20 as they tell the whole story:-


Again, I make no apology for repeating myself. But I will elaborate the point. I believe that Lord Hailsman once said that “the rule of law is a confidence trick”. What he meant was that the rule of law depends upon public confidence and public acceptance of the system whereby Parliament makes the laws, the courts enforce them and the vast majority of citizens accept them until they can get them changed. The stance of the journalists’ profession in relation to this particular law, (contempt of court) of which it happens to disapprove, threatens this confidence and acceptance. This surely, is contrary to the highest possible public interest. Any widespread refusal to obey the orders of the courts is a threat to the authority of the courts which is not any the less such a threat, because it is coupled with an acceptance that there will be a penalty to be paid.”


[39] Giving full weight to all of the aforegoing considerations, it follows that the constitutional points raised in his grounds of appeal cannot avail the Appellant. He was correctly found guilty of contempt of court.


Sentence


[40] As pointed out in paragraph [5] above, the Appellant was sentenced to a fine of R40,000 or 30 days imprisonment in default of payment. Now, it is trite law that sentence is pre-eminently a matter within the discretion of the trial court. An appellate court will not interfere merely because it would have exercised that discretion differently from the trial court. It will generally interfere only where there is a material misdirection resulting in a miscarriage of justice or where the sentence is so harsh as to compel an inescapable inference that the trial court acted unreasonably and therefore improperly.


[41] It is a striking and regrettable feature of this case that the learned Chief Justice has not filed any reasons for the sentence he imposed on the Appellant. This cannot be right. It is the right of every accused person to know the reason why he or she has been sentenced. Moreover, failure to give reasons may often give the impression that the decision is arbitrary and thus bring the justice system into dispute. Be that as it may, the absence of written reasons for sentence in this matter means that this Court is at large to do its best and consider sentence afresh. This is more so since there is absolutely nothing on record to show that the learned Chief Justice considered, as he ought to have done, any mitigating factors in favour of the Appellant such as his personal circumstances.


[42] Now, the Appellant’s personal circumstances as gleaned from the record show that he is married to a teacher. Incidentally, the Appellant himself was initially a teacher by profession as well as in politics. We were informed from the Bar that the Appellant has no children. He has been engaged in publishing for a very long time and as such has guided the Regar Newspaper from a newsletter to one of the leading newspapers in Seychelles.


More importantly, the record further reveals that the Appellant has shown “exemplary behaviour both in the development of democracy and freedom of the press in Seychelles.”


[43] It is apparent from the record that the Appellant is a respectable citizen. Indeed the learned Chief Justice himself has stated the following on page 48 of the record: “I have a lot of respect for him.”


[44] Furthermore, it is pertinent to point out also that during the course of addresses in mitigation of sentence, the learned Chief Justice was clearly of the view that the Appellant had been ill-advised by his legal advisors. In his own words he said this:-


“… I must say that I have a lot of sympathy for the respondent (Appellant). Today, if he finds himself in hot water, it is through no fault of his but undoubtedly that of his legal advisors. There is no doubt whatsoever in my mind that the respondent has been ill-advised right from day one up to the present time.”


It will be noted for that matter that the learned Chief Justice was apparently so convinced of the “ill-advice” of the Appellant’s legal advisors in question that he emphasized the point further on pages 44 and 48 of the record respectively. It is right then that the sentence imposed should reflect this factor in favour of the Appellant. That, however, is not to say that this court condones the “ill-advice” of the Appellant’s legal advisors in question. If substantiated, such conduct cannot be deprecated strongly enough. As officers of the court legal advisors have a duty to protect the integrity and dignity of the court at all times and not to undermine it. Since the legal advisors in question were, however, not given an opportunity to defend their position on this issue, it is unnecessary for this Court to say more.


[45] That the sentence of R40,000 imposed on the Appellant is excessive and has no regard to his personal circumstances is borne out by what the learned Chief Justice himself said on page 48 of the record:-


Court: I am going to impose a fine but the fine if you (the Appellant) is on the high side you can appeal. I think this case should go to the Court of Appeal; go to the Constitutional Court let them decide. For me it was a simple issue. He (the Appellant) should not have broken the law. Otherwise if I send someone to Long Island (prison) Mr. Marengo says he is not prepared to accept him. He should have waited for one or two days.” (Emphasis supplied).


With due respect, these remarks are unfortunate as they might give the impression that the learned Chief Justice was imposing an unduly excessive sentence and thereby simply passing the buck to other courts to reduce it. It is, however, the duty of the trial court to impose a balanced sentence taking into account the triad consisting of the crime, the offender and the interests of society.


[46] In dealing with sentence, this Court is mindful of the age-old caution not to approach punishment in a spirit of anger. The justification for this caution, as one seems to have read, is that he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too little. The Court also takes into account in favour of the Appellant that he was, as he says, bona fide trying to “champion” the constitutional right to freedom of expression, albeit in a misguided manner.


[47] Having said all of these, it must be stressed that contempt of court is a very serious offence indeed. Flagrant disregard of court orders as this case illustrates cannot be tolerated. As pointed out previously, contempt of court strikes at the very roots of the rule of law. It undermines public confidence in the courts of law by lowering their integrity and dignity. In short, it is detrimental to democracy itself. It is therefore necessary to give such sentence as would deter other like-minded persons that it does not pay to defy court orders with impunity as this case has illustrated or at all.


[48] At this stage it is necessary to have regard to Rule 41 (2) of the Seychelles Court of Appeal Rules 1978. It reads:-


At the hearing of an appeal the Court may, if it thinks that a different sentence should have been passed, and whether or not an appeal has been brought against sentence, quash the sentence passed by the trial Court and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed.”


[49] Giving full weight to all the relevant factors in this case as fully set out in paragraphs [36 – 42] above, I have come to the conclusion that the most appropriate sentence to impose is a fine of R5,000 or three months’ imprisonment in default of payment.


[50] In the result, the following order is made:-

  1. The appeal on conviction is dismissed.

  2. The sentence of the court a quo is set aside and replaced with the following:


The contemnor, Roger Mancienne, is sentenced to the payment of a fine of R5,000 or three months’ imprisonment in default of payment.”




……………………………

M. M. Ramodibedi

President





I concur: ………………………..

S. J. Bwana

Justice of Appeal








Delivered at Victoria, Mahe this 20th day of May 2005