Magistrate in Hlophe son case withdraws

13 March 2012 - 17:20 By Sapa
Image: Times Media Group

Magistrate Susan Smith first ruled that defence allegations that the charges were maliciously brought, and that prosecutor Ezmarelda Johnson had behaved in an unethical and irregular manner, were unfounded.

She added: "I have no doubts as to the validity of the charges, and there are no grounds to say that the State was malicious in bringing the charges, or that the prosecutor behaved in an unethical or irregular manner."

She said the request by defence counsel Thembalihle Sidaki for the court to rule on the validity of the charges meant that she had had to peruse documents dealing with the merits of the case.

This resulted in her now having pre-trial knowledge of the merits of the case, which meant that she could no longer preside in the case, and that she was obliged to recuse herself.

She said she would have to inform the Western Cape president of the regional court of the development, to enable him to allocate another magistrate to the case.

The trial is now expected to begin on Wednesday, before magistrate Kenny Pieterse, on six counts of fraud, three of theft, three of uttering (presenting) forged documents, one of defeating the ends of justice, and one violation of the Identification Act.

Smith said the prosecutor was accused of unethical and irregular behaviour for adding a 15th charge -- conspiracy to commit fraud -- and then withdrawing the charge after the defence had requested further particulars about it.

Smith said the State was under no obligation to give reasons for its actions, and that the prosecutor had the right to decide the charges.

Although under no obligation to do so, the prosecutor had nevertheless explained the withdrawal of the conspiracy count -- that to have provided the defence with the details requested would have delayed the proceedings.

Smith said the arguments presented by Sidaki, about the prosecution itself being malicious, and the prosecutor behaving in an unethical and irregular manner, had no basis in law.

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