Recent Case: Specific crimes

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 409-414
• Citation: (2004) 17 SACJ 409
• Date: 24 May 2019
• Author: Ronald Louw

Recent cases



409

Specific crimes

RONALD LOUW

University of KwaZulu-Natal

Contempt of court

In

S v Ntshwence

2004 (1) SACR 506 (TkD) the desirability of summary

contempt proceedings in the magistrates' courts is once again brought to the

fore (s 108(1) of the Magistrates' Courts Act 1944). The accused, who was on

trial for another matter, should have been in custody for that other matter but

was noticed by the magistrate to come forward from the public gallery. After

remanding him in custody the accused was apparently unhappy and

allegedly became violent and insulting to the court officials, although on

responding to the review court's questions, the magistrate was unable to

recall any of the insulting comments. None of these had been recorded and

he merely relied on the fact that apparently the relevant officials had been

aware of the insults. The record of the summary proceedings is extremely

brief and the proceedings unlikely to have lasted much longer than a minute.

The accused merely assented to the questions put to him and was unco-

operative in respect of sentence. He was sentenced to eight months

imprisonment even though s 108(2) makes provision of a maximum sentence

of six months imprisonment.

Much of the review court's judgment is devoted to the constitutionality of

the summary proceedings created in the Act. The court finds the provisions

to be constitutional provided that the accused is informed of and enabled to

exercise his constitutional rights to a fair trial in terms of s 35(3) of the

Constitution of the Republic of South Africa Act 1996. Interestingly the review

court found that the summary proceedings were not 'before an ordinary

court' as required in s 35(3)(c) but this limitation was saved for the justifiable

reason that summary proceedings were necessary to uphold and protect the

dignity of the court (at 520h). The review court held, however, that where an

accused exercises his or her right to be represented, this may necessitate a

postponement of the proceedings (at 517c). This the court held would not be

contrary to the notion of summary proceedings as this merely referred to the

institution of proceedings without a summons (at 5170.

Such a postponement might however appear to diminish the purpose of

summary proceedings, namely, to uphold and protect the dignity of the

court. If, however, the dignity of the court can still be upheld and protected

in the face of such a postponement, then the question this raises is why

summary proceedings should be instituted at all. The review court held that

(2004) 17 SACJ 409

© Juta and Company (Pty) Ltd