Judge Esther Steyn to hear prosecutor removal case in Isis-linked trial

Durban high court judge Esther Steyn has put the Islamic State-linked couple charged with the murders of British botanists Rodney and Rachel Saunders on a tight leash, ordering that their bid to remove the prosecutor from the trial will be heard this week.

Steyn on Monday also put paid to their attempt to get the application for the removal of senior state advocate Mahen Naidu to be heard by a civil court.

Steyn, in her ruling, said since 1994 a “golden thread” in South Africa’s jurisprudence was that the trial court must decide on issues of fair trial rights — especially in matters where the trial was midway through.

She ruled that Sayfudeen Aslam Del Vecchio and his wife, Fatima Bibi Patel, who are standing trial along with Malawian Ahmed Mussa Jackson, must file the removal application with the court by Wednesday this week and she will hear it on Friday.

However, trial observers believe the attempt to remove Naidu is just a precursor for an application for the recusal of Steyn.

This seemed evident from the application that the removal matter be heard by another civil court, which only referenced alleged irregularities committed by Steyn, which, it was claimed, was making them feel “anxious” about her impartiality.

Their attorney, Shaheen Seedat, was careful to point out that the case was not that Steyn was prejudiced against them, but that this was a “unique” situation and the judge should “err on the side of caution” to “prevent potential prejudice from arising in the minds of the accused’.

In heads of argument, it seemed that the gripe was mainly against department of correctional services and police officials, who had barred them from bringing certain items, including prayer mats, to court, and that they had been denied the right to properly consult their lawyers.

They alleged Steyn had not taken up their cause when the complaints were brought to her attention.

At this stage, it is not clear what the complaint against Naidu is, other than an allegation that he followed a witness into the bathroom, where he apparently coached him.

Steyn is already the second judge to hear the matter after judge Sharmaine Balton recused herself after it was brought to her attention that she had presided over a relating asset forfeiture matter.

The trial thus had to start afresh, and so far Steyn has heard evidence from 48 witnesses over 38 court days.

In her ruling on Monday, she said the constitution guaranteed the right to a fair trial, and this included a speedy trial.

“Since this [removal] application relates to the fairness of the trial, there is nothing unusual or unique about this case, and this court is best placed to hear it. The practice has always been that interlocutory applications are heard by the trial court.

“To refer it to another court would require that court to read voluminous transcripts which would unduly delay the [trial] proceedings.”

She said should an accused person not be satisfied with the outcome of the interlocutory application, that could be dealt with on appeal, after the completion of the criminal trial.

Del Vecchio and Patel have been in custody since February 2018. Apart from the murders, they are also charged with robbery and malicious damage to property.

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

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