Recent Case: Constitutional application

• Jurisdiction: South Africa
• Pages: 452-463
• Date: 03 September 2019
• Published date: 03 September 2019
• Author: Anashri Pillay
• Citation: (2004) 17 SACJ 452

452

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SACJ •

(2004) 17

Constitutional application

ANASHRI PILLAY

University of Cape Town

Constitutionality of contempt of court procedure

In

S v Ntshwence

2004 (1) SACR 506 (Tk), the case was sent on special review

to the High Court. The accused had been convicted for contempt of court and

sentenced to eight months' imprisonment (at 510

c-d).

The constitutional

issues before the court turned on whether the accused in contempt of court

proceedings under s 108(1) of the Magistrates' Court Act 1944 was entitled to

the fair trial rights set out in s 35(3) of the Constitution and whether the

summary procedure itself was constitutional (at 511 h-O. Referring to the

Constitutional Court decision in

S v Mamabolo (E TV and Others Intervening)

2001 (1) SACR 686 (CC), Maya J held that the contempt

of court procedure is in place 'to protect the authority, reputation and dignity

of the court and the orderliness of its proceedings'. The importance of this

goal is supported by s 165 of the Constitution (at 513

h-j).

However, the issue

here was whether the summary nature of the procedure violated certain

rights. The court held that the right to be informed of the charge with

sufficient detail to answer it' was not violated as there is an opportunity,

within the summary procedure, for the accused to be informed of the

particulars of the charge (at 516b). Similarly, the right to have adequate time

and facilities to prepare a defence' is not violated as the accused must still be

informed of the right and, if he or she chooses to exercise that right, the court

will then have to facilitate this (at 516

i-j).

The right to legal representation,

protected in s 35(3)(f) and

(g)

is also not necessarily violated by the summary

nature of the procedure. Whilst the proceedings may commence without a

summons (at 517i-j), the proceedings do not have to be completed there and

then if the accused chooses to exercise any of the rights of which he is she is

(2004) 17 SACJ 452

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