Recent Case: Evidence

• Jurisdiction: South Africa
• Pages: 117-124
• Citation: (1999) 12 SACJ 117
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: P J Schwikkard

Recent Cases • Vonnisse

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117

Evidence

P-J SCHWIKKARD

Faculty of Law, Rhodes University

Presumption of innocence

Contempt of court by means of civil proceedings

In

Uncedo Taxi Service Association v Maninjwa

1998 (2) SACR 166 (E)

Pickering J held that it was irrelevant whether contempt of court proceedings

were instituted by means of civil or criminal proceedings, in either instance

proof beyond reasonable doubt was necessary as it would be 'clearly

unconstitutional to deprive a person of his liberty upon proof merely on a

balance or probabilities' (at 174g). The welcome and implied reasoning of

the court being that when imprisonment is imposed as penalty in

proceedings not categorized as criminal, the residual contents of s 12(1)

of the Constitution incorporates the reasonable doubt rule as a require-

ment of procedural fairness. (Section 12 guarantees the right to freedom and

security of person.)

Relationship with the duty to present a prima facie case

The Constitutional Court in

Osman v Attorney-General, Transvaal

1998 (2)

SACR 493 (CC) considered the constitutionality of s 36 of the General Law

Amendment Act 62 of 1955 which provides:

`Any person who is found in possession of any goods, other than stock or produce

as defined in s 1 of the Stock Theft Act 57 of 1959, in regard to which there is a

reasonable suspicion that they have been stolen and is unable to give a satisfactory

account of such possession, shall be guilty of an offence and liable on conviction to

the penalties which may be imposed on a conviction of theft.'

Madala J endorsing the reasoning of McCreath J in the court a quo found

that s 36 did not infringe the right to remain silent or the presumption

of innocence as s 35 'does not

per se

cast a duty on a person suspected of

contravening the section to make any statement at all' (at [19]). The accused

merely bears the ordinary risk that arises from remaining silent once the state

has presented a prima facie case. The prosecution being required to prove all

three elements of the charge beyond a reasonable doubt. Unfortunately the

court did not consider the implications of considering silence as an item of

evidence prior to a prima facie case being established which is an inevitable

consequence of the s 36 (see (1998) 11

SACJ

273). In the absence of such

consideration it is hope that the precedent set by

Osman

will be confined to

the peculiar nature of s 36.

(1999) 12 SACJ 117

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