Malema fails in bid to remove magistrate
‘The presumed bias is unfounded’
A move by EFF leader Julius Malema and his bodyguard 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 dubbing it an application made as a result of anxiety which was not a ground for recusal.
This was after magistrate Twanet Olivier questioned a 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, that it has trampled on the presumption of innocence...”
Olivier 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 court has indeed applied its mind and excluded any or all subjective interpretation in the law of judicial recusal. The presumed bias is unfounded. The application to recuse myself in this matter is refused,” she said.
Malema is charged with the unlawful possession of a firearm and ammunition, discharging a firearm in a builtup 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 precauset tions to avoid danger to people or property and providing a firearm or ammunition to someone not allowed to possess it.