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[2015] ZAGPJHC 263
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S v Camara (115/2015) [2015] ZAGPJHC 263 (21 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case number: 115/2015
DATE: 21 OCTOBER 2015
In the matter between:
THE STATE
And
CAMARA,
SIMON
...................................................................................................................
Accused
1
JUDGMENT
SATCHWELL J:
INTRODUCTION
1. Mr Camara was charged in the
Randfontein Magistrate’s Court on 1st October with offences of
fraud and uttering. Mr Camara
was represented by Ms Mjanha who
brought a bail application on his behalf. The matter was postponed to
7th October. After giving
judgment the learned magistrate refused to
grant bail.
2. The record indicates that the
magistrate heard the accused swear at the court as he left the dock.
Almost immediately, an enquiry
was convened. The magistrate asked if
the same legal representative was going to represent Camara in “these
contempt proceedings”
and, after speaking to Camara, the answer
was in the negative.
3. Camara then gave evidence which was
really questioning by the magistrate. He confirmed that he had sworn
at the magistrate. When
asked if he wanted to say anything further he
added “because the state did not do my docket correctly and
because of that
now, I must take the punishment for that. And I do
not know if I have say in my own case I must keep quiet…”
“Nobody
listens to me” “The court was not fair to
me”.
4. The learned magistrate gave a short
judgment finding that Camara had acted contemptuously and was “not
even apologetic”
for that and found him guilty of contempt of
court and sentenced him to pay a fine of R 300 or serve a period of
30 days imprisonment.
5. This matter is now sent on special
review.
6. The learned magistrate appears to
have had three options:
a) Firstly, to ignore the swearing of
the accused. (See para [14] of Lewis v S
[2007] 3 All SA 477
(SCA)).
This is a matter eminently within the discretion of the presiding
judicial officer who would take into account all circumstances
including what was said, how it was said, who heard it, how many
people heard it, and the impact on the proceedings in that court.
b) Secondly, adjourn the proceedings
for another day when there would remain no emotions on the part of
any person who had been
in the court. This would also enable a
decision to be made as to whether or not the magistrate would give
evidence (since it could
not be assumed that Camara would volunteer
or agree that he had sworn), determine what the charge was, and
advise him of the right
to legal representation and so on. Again such
decision is one to be taken by the learned magistrate – when
would a court
be available, did the accused want legal representation
and so on.
c) Thirdly, a hearing could be convened
(as it was) at the time when the accused, his legal representative
and the magistrate were
all present. Again this timing and this
procedure falls within the discretion of the magistrate who would
have to make a split-second
decision as to whether or not evidence
need be led that there had or had not been swearing, what words, at
whom or at life in general,
the impact on the dignity of the court
and so on.
7. Our highest courts have considered
the circumstances when a summary procedure should continue to be
pursued as was done prior
to our current
Constitutional dispensation. In S v
Mamabolo (eTV and others intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC) the court
referred to the “exceptional circumstances” where
“the orderly progress of judicial
proceedings are disrupted, possibly requiring quick and effective
judicial intervention
in order to permit the administration of
justice to continue unhindered”. It would only be in such
exceptional circumstances
that such a summary procedure could be
permitted because such summary procedure “is a wholly
unjustifiable limitation of
individual rights and must not be
employed”.
8. In the present instance, I cannot
see that it was necessary to preserve the dignity or authority of the
court to permit the administration
of justice to consider unhindered
that the summary procedure should have been followed. There was no
reason why a prosecution led
by the prosecuting authority at trial
could not have taken place.
9. Camara was on his way out of court –
having been refused bail. Immediate action was not required. The bail
application,
which was then the business of the court, had been made
and considered and judgment handed down. The only ‘evidence’
pertaining to the alleged offence was extracted from Camara by the
magistrate therefore constituting a ‘confession’
in
court. If there had been a proper prosecution then evidence could
have been led of what was said, to whom, with what loudness,
and all
the circumstances. The intention of such expression would have had
to be proven. In short I can find no reasons why a
fair trial with
proper prosecution and presentation and legal representation should
not have been permitted.
10. I have not, in this matter, sought
the advice of the Office of the Director of Public Prosecutions since
the law is clear in
this matter and there need be no delay.
11. In the result, this conviction and
sentence:
a. Are both set aside.
b. The magistrate, as complainant, may
decide whether or not to refer the matter to the office of the public
prosecutor to initiate
a prosecution on such charges as are deemed
appropriate.
DATED AT JOHANNESBURG 21ST OCTOBER
2015
SATCHWELL J
I Agree:
WEINER J
Counsel: No Counsel as review
proceedings