If judge Ratha Mokgoatlheng were to recuse himself in the Senzo Meyiwa murder trial, this would mean that the case would have to start afresh before a new judge, legal experts say.
During proceedings this week, Mokgoatlheng apologised to the court for racial remarks he made while scolding one of the defence lawyers, advocate Charles Mnisi, for wanting to skip court to run the Comrades Marathon.
In his apology, Mokgoatlheng addressed the accused, stating that if they believed he would not grant them a fair trial, they were within their rights to bring a recusal application. He added that he would not object to recusing himself if necessary.
The murder trial has already experienced multiple delays due to various factors, including the appointment of Mokgoatlheng in 2023 to replace judge Tshifhiwa Maumela which necessitated that the trial start afresh. The trial was also delayed after the death of advocate Thulani Mngomezulu in December last year when his replacement requested a few months to acclimatise himself with the case
Legal expert Nthabiseng Dubazana said a recusal would be at great cost to state funds as the witnesses were usually paid fees to attend.
“Travel fees, resources and Legal Aid pays its practitioners and this is a cost, even though judiciary matters are not that expensive in comparison to normal attorney fees,” she said.
Legal expert Melusi Xulu said it is unprecedented in South African law that a trial would have to start afresh for a third time.
“It will be unfair to the accused that they keep coming back to answer to the same case,” he said. This would also affect the witnesses.
Xulu believes Mokgoatlheng was sensing there was apprehension about him sitting in the case when he made his remark about the recusal. “So he's seeing the possibility that an application will be made. But we will see whether the defence is thinking of that approach. Of course, it will be unfair that the trial has to start for a third time, but that is how the law is,” he said.
Legal analyst Abigail Ngobene said in South African law, recusal is guided by whether a reasonable, informed person would have a real apprehension that the judge might be biased, even unintentionally. She said a judicial recusal at this point would significantly delay the trial, which has already taken up a considerable amount of time.
Recusal at such a stage may not only delay the proceedings but could also result in the matter being restarted entirely, with significant prejudice to the parties and systemic strain on the criminal justice process
— Abigail Ngobene, legal analyst
“Numerous witnesses have testified, and starting over would mean those witnesses may need to be recalled and re-examined. It would also place an additional burden on witnesses, many of whom have already gone through the emotional strain of testifying,” she said.
Ngobene said where a criminal trial has progressed significantly, as is the case in the Meyiwa matter, the recusal of a presiding judge carried serious procedural consequences.
She said if key witnesses had already testified and been subjected to cross-examination, any newly appointed judge would not have had the opportunity to observe their demeanour, credibility and manner of testifying — all of which are essential components in making accurate findings of fact.
“The Constitutional Court and the Supreme Court of Appeal have consistently held that credibility assessments form a central part of a trial court’s function and cannot always be determined solely from the written record. As such, where material factual disputes hinge on witness credibility, fairness may demand that the matter be heard de novo [afresh],” she said.
“This approach is rooted in the constitutional right to a fair trial under section 35(3) of the constitution, as well as principles of natural justice, which require not only impartiality but the practical ability of the judicial officer to evaluate all evidence firsthand. Therefore recusal at such a stage may not only delay the proceedings but could also result in the matter being restarted entirely, with significant prejudice to the parties and systemic strain on the criminal justice process.”
A judge should step down if it looks like they might be biased, even if they were not, she added.
“You don’t have to prove the judge is actually unfair — it’s enough if an ordinary, reasonable person would think the judge might not be able to decide the case fairly.”
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