Malema fails in bid to remove magistrate
Application for recusal refused after claims of bias rejected
A move by EFF leader Julius Malema and his bodyguard to attempt to have the magistrate presiding over their case recused was thwarted on Thursday when the magistrate dismissed their application.
Malema and his co-accused Adriaan Snyman, who face charges resulting from allegedly discharging a firearm at the party’s birthday celebration in Mdantsane in 2018, brought the application for recusal on Thursday, citing concerns of bias by the magistrate.
The state opposed the application, with state prosecutor advocate Joel Cesar calling it an application made “as a result of anxiety”, which was not a ground for recusal.
This was after magistrate Twanet Olivier questioned state witness Samuel Kwata about video footage, allegedly from the day in question, which caused an outburst from Malema, who accused Olivier of prosecuting them and called for her recusal.
Olivier said she knew an accused was innocent until proven guilty, no matter what the charge sheet may allege, and no matter what witnesses said.
“This court is alive to process that is to be followed. The prosecution carries an onus to prove beyond reasonable doubt the guilt of the person it accuses.
“Whatever the position may be, it can never be reasonably suggested that because this court used its right to ask questions from witnesses with objective facts in mind, it has trampled on the presumption of innocence.
“It can also hardly be suggested that a reasonably informed person in the position of the applicants would reasonably perceive bias upon hearing questions by a court conducted in accordance with procedure, which questions are not limited to evidence-in-chief or to what
is emanating from cross-examination, but which aim is to obtain information and objective facts, nothing more and nothing less,” Olivier said.
She said having applied her mind to the request to recuse herself, and for the proceedings to start before another magistrate, or alternative relief, her finding was void of any emotional sentiments, and was not in any way seen as a personal attack on her.
The presumed bias is unfounded. The application to recuse myself in this matter is refusedMagistrate Twanet Olivier
“The court has applied its mind and excluded any or all subjective interpretation in the law of judicial recusal.
“Therefore in my view all that was established by this court during questioning by the court was a process in which the court might clarify issues and obtain objective facts.
“The presumed bias is unfounded. The application to recuse myself in this matter is refused,” she said.
The defence teams of the accused said they were instructed to continue with the trial.
Malema also confirmed when asked by Olivier that those were their instructions.
The red beret leader is charged with the unlawful possession of a firearm and ammunition, discharging a firearm in a built-up area or public place, reckless endangerment of people and property and failing to take reasonable precautions to avoid danger to people or property.
Snyman is charged with failing to take reasonable precautions to avoid danger to people or property and providing a firearm or ammunition to someone not allowed to possess it.
Both have pleaded not guilty to all the charges.
The trial continues on Friday with a 13th state witness to be called.
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