‘What has he done to you?’: magistrate’s ‘worrying’ remarks in Mboro case in spotlight

Magistrate Katlego Mokoena's alleged remarks after Paseka 'Mboro' Motsoeneng's failed bail application, her conduct on the day he brought a fresh bid and her apparent questioning of why the prosecution was being “so hard” on him have come under scrutiny, with the state wanting her to recuse herself from presiding over the matter.

Motsoeneng and his bodyguard, Clement Baloyi, were back in the Palm Ridge magistrate's court on Monday for what was meant to be a fresh bail application “on new facts” after their previous bid failed in August.

The duo and a third accused, who was granted bail, face a raft of charges, including kidnapping, possession of a dangerous weapon, discharging a firearm and pointing a firearm.

Motsoeneng's legal team had complained bitterly ahead of proceedings over the delays in the resumption of the matter. This after issues with allocating a courtroom for the matter resulted in it only being heard after 12pm.

Even then, matters took another turn when the National Prosecuting Authority (NPA) announced it was applying for Mokoena's recusal for various issues. Among them is how the accused were brought to court after their bail was denied in August.

NPA spokesperson, Phindi Mjonondwane said the state held the view that Mokoena might not bring an unbiased mind in adjudicating the case before her. 

Senior prosecutor Kenny Ramavhoya handled the application on the state's behalf as the usual prosecutor in the matter, Pheello Vilakazi, acted as a witness in the state's case.

Vilakazi then explained the sequence of events after Motsoeneng's bail was denied on August 19.

“As people were clearing out of the courtroom, I was still packing up. However, there were still a few people in the room. Motsoeneng's legal team was also still here, and I recall the magistrate asking me to call a member of his legal team to her office.

“I passed on the message, and it seemed the person approached the bench. I then heard the magistrate say that the reason the bail application wasn't successful was because the accused's affidavits were very poor and that they needed to fix their papers before bringing back their application,” he said.

Vilakazi clarified that Mokoena didn't say the last part to anyone specific, as Motsoeneng's legal team had left the room at that point, but that rather it was part of a “general conversation with everyone present”.

He then bumped into the same member of defence team, on a different day at the court, and enquired if the person ever went to see Mokoena as requested. Vilakazi was told that the person tried to see Mokoena but she was on leave.

Vilakazi then testified that on September 2, the day Motsoeneng's fresh application was due to be heard, he had an informal conversation with the magistrate “in passing”.

This occurred as he and the legal aid lawyer assigned to district court one were in the office of that court's presiding officer, which is located next to Mokoena's old office.

Vilakazi said he had no knowledge of a new application being brought before the court.

“That's when I bumped into her as she headed out of her office. I then asked her if she knew about any new bail application [in this matter]. She said she knew about it, but I mustn't worry about it as a colleague would do it, it's not a big deal.

“So I focused on my court roll, which was heavy, but later that day, I was told that I must still carry on with the [Motsoeneng] case. I again saw Mokoena as I headed out of the other magistrate's office, and I stopped to speak to her. I then asked her when the case would be heard, and that's when she asked why I was so hard on Motsoeneng and what he had done to me.”

Vilakazi said he was “taken aback” by these questions and found it “worrying” coming from the presiding officer as it created a “negative impression”. It was the police who lodged a formal complaint after the investigating officer raised issues with the handling of Motsoeneng's appearance on September 2.

Motsoeneng's legal team opposed the application and tried to pin the bungling of the matter so far on the state's doorstep, accusing the prosecution of delaying tactics.

The defence, through advocate Phillip Dlamini, also questioned where the issue lay in Mokoena asking him those questions, to which Vilakazi replied: “To me, it seemed [like she was] more inclined towards one litigant, to the prejudice of another.”

The defence spent a considerable amount of time grilling Vilakazi before making its closing arguments, along with the state, in the matter.

The magistrate initially suggested postponing the matter to the end of the week to give her time “to absorb what has transpired” and prepare her judgment.

This raised sharp objection from the defence, with Dlamini saying: “This is pure abuse of my client's constitutional rights. This situation ... it puts our client in danger [because] if he can be taken out of prison and brought to court without our knowledge, it puts his life in danger.

“This prosecution and police are telling us that the said person who made that requisition for him to be in court are nowhere to be found, that's the first point. Second, the advocate or attorneys that resulted in the matter coming to court are nowhere to be found. You can understand that the lives of our clients are at high risk, he [Motsoeneng] is more unsafe inside prison than outside. There's a need to look objectively at whether justice is being applied here [or whether] he's being punished because he's Mboro.”

A compromise of Wednesday was eventually reached. The matter was then postponed to allow Mokoena to give judgment. Motsoeneng and his accused remain in custody.

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