Twist in Isis-linked trial as accused ask for prosecutor removal application to be heard by new judge

While the lawyer for the Islamic State-linked couple charged with the murders of British botanists Rodney and Rachel Saunders in 2018 says he will apply for the removal of the lead prosecutor in the trial, he hasn’t said on what grounds this application will be made.

Heads of argument submitted on behalf of Sayfudeen Aslam Del Vecchio and his wife Fatima Bibi Patel reference only alleged irregularities committed by judge Esther Steyn and that they were anxious about this. 

Because of this, so the argument went, Steyn should not hear the application for the removal of prosecutor advocate Mahen Naidu.

Attorney Shaheen Seedat said this was an “extraordinary” application which warranted a deviation from the norm and another court should hear the application. His clients may “reasonably apprehend that the judge has not or will not bring an impartial mind to bear” on it.

The state brought in big legal guns to bat off these suggestions, briefing senior advocate Pingla Hemraj and Zakaria Suleman, who argued there was nothing “special” about this case. It was a routine mid-trial interlocutory application, such as those routinely heard by trial judges, such as admissibility of evidence in “trials-within-trials”.

Steyn, noting Del Vecchio and Patel are in custody, said when accused are in detention the paramount consideration was their right to a speedy trial.

“If every interlocutory application was sent to another court for determination, it would create undue delay,” she said.

“Any criminal trial is governed by the constitution and the Criminal Procedure Act. Please explain to me why this matter must be taken, part-heard, out of the criminal justice system and placed before a civil court.”

Seedat said Steyn should “err on the side of caution”.

Steyn will rule on Monday whether she will hear the application for the removal of Naidu, but it seems likely that eventually there will be an application for her recusal.

The trial has already had to start de novo after judge Sharmaine Balton recused herself.

This, it was placed on record at the time, was after it had been brought to her attention that she had previously dealt with a related asset forfeiture application.

Steyn has already heard evidence from 46 witnesses.

Most of the complaints against Steyn relate to the conduct of the investigating officer, SAPS and correctional services personnel and, in the opinion of Del Vecchio and Patel, the judge did not come to their assistance and they now had a reasonable apprehension that she was partial to the state.

Del Vecchio and Patel complained that on the instructions of the investigating officer and correctional services they were prevented from bringing a backpack into court containing writing material, legal documents, prayer mats and lunch boxes.

On another occasion, correctional services officials discarded their bags and put their belongings into black garbage bags.

The investigating officer and correctional services officers had also taken photographs of them while they were about to sleep.

“These complaints were conveyed to the court, who stated that the court cannot overrule correctional services decisions and it ought to be raised via the correct procedures and through the judicial inspectorate,” Seedat said in his written argument.

Among other complaints were they were not allowed to properly consult their legal team and Steyn had not taken anyone to task for this when it was pointed out to her.

Seedat concluded: “It is respectfully submitted that it is not that the honourable court harbours a prejudice against the accused, but the court should err on the side of caution and another court should hear the [prosecutor removal] application to prevent potential prejudice from arising in the minds of the [accused].”

Del Vecchio and Patel have been in custody since February 2018. They are standing trial with their former boarder, Malawian Ahmed Mussa Jackson.

Apart from the murders, they are also charged with robbery and malicious damage to property.

During the trial, the court building and courtroom is guarded by heavily armed police and access is restricted.

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