S v Burger (R15/20) [2020] ZANCHC 73 (30 October 2020)

S v Burger (R15/20) [2020] ZANCHC 73 (30 October 2020)

The court held that the summary conviction and sentencing of the accused for contempt of court in facie curiae, without affording him the rights guaranteed under section 35(3) of the Constitution, constituted a fundamental departure from the requirements of fairness and justice. The exception to the audi alterem partem principle, as previously recognised in pre-constitutional jurisprudence, cannot survive under the current constitutional dispensation. The accused was not given an opportunity to address the contempt charge or present mitigating circumstances, and the summary procedure adopted was unlawful. Accordingly, the conviction and sentence were set aside, and the matter was referred...

Citation
[2020] ZANCHC 73
Parties
Applicant: The State; Respondent: Jeffrey Burger
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
30 October 2020
Case Number
R15/20
Procedural Posture
Criminal Review / Review of Summary Contempt Conviction
Outcome
Conviction and sentence for contempt of court set aside; matter referred to the National Prosecuting Authority for consideration of prosecution.
Judges
Lever AJ, Williams J
Legal Topics
Contempt of Court, Summary Procedure, Right to Fair Trial, Audi Alterem Partem, Mitigation of Sentence
Criminal Law Constitutional Law Contempt of Court Summary Procedure Right to Fair Trial Audi Alterem Partem Mitigation of Sentence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

The State

Applicant

Jeffrey Burger

Respondent

Procedural Posture

Criminal Review / Review of Summary Contempt Conviction

Legal Issues

  1. 1 Whether the accused was afforded the rights guaranteed under section 35(3) of the Constitution during summary contempt proceedings.
  2. 2 Whether the summary conviction and sentencing for contempt of court in facie curiae without an opportunity to address mitigating factors was lawful.
  3. 3 Whether the exception to the audi alterem partem principle in contempt proceedings survives under the current constitutional dispensation.

Ratio Decidendi

The court held that the summary conviction and sentencing of the accused for contempt of court in facie curiae, without affording him the rights guaranteed under section 35(3) of the Constitution, constituted a fundamental departure from the requirements of fairness and justice. The exception to the audi alterem partem principle, as previously recognised in pre-constitutional jurisprudence, cannot survive under the current constitutional dispensation. The accused was not given an opportunity to address the contempt charge or present mitigating circumstances, and the summary procedure adopted was unlawful. Accordingly, the conviction and sentence were set aside, and the matter was referred...

Court Disposition

Conviction and sentence for contempt of court set aside; matter referred to the National Prosecuting Authority for consideration of prosecution.

Orders

  • The conviction and sentence of the accused for contempt of court on 15 September 2020 are hereby set aside.
  • A copy of this judgment and the record in this matter is to be forwarded to the head of the office of the National Prosecuting Authority in this Province with a request to consider an appropriate prosecution of the accused from the conduct disclosed in the said record.