By Fatima Schroeder
High Court Writer
A Dysseldorp hawker is claiming R100 000 from the minister of justice and an Oudtshoorn magistrate after he was put behind bars for two months for failing to appear in court on theft charges.
The hawker, Christopher Klaasen, says the magistrate was rude and malicious as he did not give him an opportunity to explain his absence.
Lawyers representing the minister of justice concede that the magistrate was negligent, but argue that the minister cannot be held liable.
Klaasen lost his case in the Oudtshoorn Magistrate's Court, but appealed to the Cape High Court.
The appeal was heard before two judges on Friday.
The drama unfolded in May 2005 when Klaasen and six co-accused were scheduled to appear before magistrate Rene Gerber on theft charges.
At that stage, the theft case had been on the court roll for a year, and had been postponed several times because the accused were absent.
By May 5 that year, when the case was again delayed by Klaasen's absence, Gerber had had enough and authorised a warrant for Klaasen's arrest. At the time, Klaasen was out on warning.
On May 11, Klaasen was brought before the magistrate to explain his absence.
According to a statement he had made at the Mitchells Plain police station, he was in Cape Town and his transport to Oudtshoorn had abandoned him.
But Klaasen said the magistrate refused to even look at the statement and sent him to jail for two months before he was eventually granted bail.
He then spent an additional three weeks in jail because he could not afford to pay the bail amount.
Klaasen alleges in court papers that the magistrate had a duty to treat his case with the necessary professionalism.
Also, Klaasen says that he was deprived of his liberty and that his business deteriorated because of his absence.
His lawyer, Clyde Avontuur, argued in the high court on Friday that Gerber had been rude to Klaasen and acted maliciously.
Gerber had also disregarded Klaasen's rights, Avontuur said.
He submitted that the magistrate should have held an inquiry.
Judge Ashley Binns-Ward interjected, asking whether the court could reasonably come to the conclusion that the magistrate had acted maliciously.
He said that the magistrate believed he had been allowed to do what he did.
But Avontuur responded that the court should take into account the manner in which the magistrate had conducted himself.
"It is shocking and inappropriate, especially in light of the facts he had before him. (Klaasen) wasn't absent before that," he said.
Steve Dlwathi, counsel for the minister, denied that Gerber had been malicious, but conceded that the magistrate's conduct had been negligent.
He explained that there had been no intent in the negligent behaviour.
He said, however, that the minister could not be held accountable for a magistrate's actions because these judicial officers were regarded as independent.
He submitted that Klaasen had cited the minister in his personal and not his official capacity.
Judges Essa Moosa and Binns-Ward have reserved judgment.