Court throws out woman’s M500k claim

Court throws out woman’s M500k claim

MASERU – A divorced woman who claimed M500 000 from a magistrate who locked her up for contempt of court has lost the battle in the Court of Appeal.
She was also suing her former husband in the same matter.
’Mampeli Marabe cited her ex-husband, Mokhethea Marabe, in her claim for constitutional damages accrued from her jailing for two days for contempt of court.

The Court of Appeal ruled last Friday that she is “not entitled to damages against any of the respondents”.
Magistrate P McPherson of the Children’s Court had committed Marabe to prison for disrespecting her during a hearing in chambers and after she failed to obey her order.
The magistrate had ordered that the divorced couple would interchangeably take care of their minor child in intervals of two weeks.
Marabe did not obey the court order and her ex-husband complained to the magistrate who questioned her in chambers why she did so.

Magistrate McPherson, the Court of Appeal found, had to send Marabe to prison because when she asked her questions she would answer sarcastically and made facial expressions that showed she took her for granted.
The magistrate said when asked why she did not take the minor child to her ex-husband when it was his time to have him as per the order she sarcastically said it was because she did not like the arrangement.
She was sent to prison for two days. She was however brought back to court and apologised and was released immediately.

However, she approached the Constitutional Court asking if the Magistrate’s Court, sitting as a Children’s Court, has the constitutional authority to commit a person to prison for contempt of court for disobeying an order.
She lost the case in the High Court and in the Court of Appeal.
The Court of Appeal concurred with the High Court that “the recognised remedies for a wrongful conviction of a person by a court is either to appeal to a higher court to have the conviction and sentence set aside or to have the proceedings reviewed and set aside as irregular, if proper procedures were not followed.

“The appellant did not follow any of these avenues. She spent two days in prison and then appeared in court, apologised and was released immediately,” the bench of five Court of Appeal judges said.
“The impact on her dignity of being arrested and spending even a short time behind bars should not be underestimated,” the court said.
“In so far as the detention violated her dignity, a factor to be taken into account in any claim for damages is causation. What exactly caused the damage that she suffered and could it have been avoided or ameliorated?” it said.

“If her suffering was in the detention, could she not immediately have appealed against her conviction and sentence? She could have requested bail, pending the outcome of the appeal.”
The court said her imprisonment could have been addressed by available legal remedies.
The mere violation of a fair trial right, in the air, without negative consequences, may well be a serious issue to be addressed generally, but it is very doubtful whether it could justify significant damages to an individual, the court found.

“Should every person wrongfully convicted in a criminal court be entitled to constitutional damages? … I, respectfully, do not think so,” Justice J Van Der Westhuizen said on behalf of the coram.
The court said it is not entirely clear whom Marabe was claiming the constitutional damages from.
As respondents she cited “the Maseru Magistrate’s Court (presided by Hon MG P McPherson)”, the Clerk of the Court, her ex-husband and the Ministry, amongst others.
“She is in my view not entitled to damages against any of the respondents.”
The coram was made up of Justices Kananelo Mosito, P Musonda M Chinhengo, J Van Der Westhuizen and N T Mtshiya.

Staff Reporter

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