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 19^th 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 27^th

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).

2. 
   
   The Honourable
   
   Judge erred in law in failing to hold that the ex-parte interim
   
   order of Justice Renaud made on the 27^th
   
   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 19^th October 2004 addressed to
   
   the Chief Justice by the three Judges of the Supreme Court.

2. 
   
   The Honourable
   
   Judge erred in law in failing to hold that the Supreme Court sitting
   
   of the 27^th 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.

2. 
   
   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.

2. 
   
   The Honourable
   
   Judge erred in law in failing to hold the Honourable Court sitting
   
   on the 27^th day of October 2004 breach
   
   (sic) the Constitutional Rights of the Appellant namely Article
   
   19(7) and Article 22 of (Cap 42).

2. 
   
   The Honourable
   
   Judge erred in law in failing to exercise his discretion to refer
   
   the Contempt of Court proceedings to the Attorney
   
   General.

2. 
   
   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.

2. 
   
   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 7^th day of December 2004 whereby he was
   
   convicted for Contempt of Court.

2. 
   
   an order setting
   
   aside and dismissing the sentence of the Supreme Court made on the
   
   9^th December 2004 whereby the Appellant was
   
   sentenced to pay a fine of Rs40,000/-.

IN

THE ALTERNATIVE

3. 
   
   an order setting
   
   aside and dismissing the orders of the Supreme Court made on the 7^th
   
   and 9^th 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 27^th

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.

2.  
   
   
   

   2. 
      
      That three
      
      Judges of the Supreme Court namely Justice Perera; Justice
      
      Karunakaran and myself submitted a memorandum dated 19^th
      
      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.

5. 
   
   That I was
   
   appointed to act as the Chief Justice during the absence of the
   
   incumbent Chief Justice from Seychelles, for the period
   
   of 27^th
   
   October 2004 to 2^nd November, 2004.

5. 
   
   That on
   
   Wednesday 27^th 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 19^th 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.

10. 
    
    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.

14. 
    
    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.

14. 
    
    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.

2. 
   
   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 29^th 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 19^th

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 27^th

October, 2004. The respondent published the Memorandum two days

later, i.e. on the 29^th October 2004. The

Court waited until the 17^th 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, 39^th

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 19^th October 2004, in his

Edition of the 29^th 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.

2. 
   
   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 – 2^nd 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. 
   
   …

2. 
   
   …

3. 
   
   for preventing
   
   the disclosure of information received in confidence;

4. 
   
   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 29^th

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.”