Three murder suspects of Mokalekale Khetheng have lost an urgent application to have the presiding Judge, Justice Charles Hungwe to recuse himself from the trial citing bias to the prosecution.
Last week, a lawyer of the three suspects, Advocate Zwelakhe Mda filed an application to have Hungwe recuse himself from the case for showing signs of favouritism to the prosecution thus showing an air of pre-trial judgement against his clients.
This week Justice Hungwe read the verdict of the application, rubbishing the claims made by the applicants as baseless and unfounded. Among other reasons was that Hungwe dismissed the application of discovery of the Lesotho Mounted Police Service (LMPS) unlawfully in March, thus labelling him as unfit to handle the case. But all those were unfit reasons to sway the mind of the Zimbabwean judge.
“A reasonably informed and objective person relies on the correct facts in deciding whether the judicial officer may not carry the adjudication of the case. He does not jump to conclusion. The applicants failed to demonstrate that their apprehension of bias is based on the correct space, and for those reasons I dismiss the application,” Hungwe said.
“This ground lacks legal foundation on so many grounds. The application was dismissed on March 29, 2021. The applicant could have appealed against judgment dismissing it. The very act of basing an application on the wrong facts disqualifies the applicants from meeting the requirements from the case to prayers,” he said.
The case was filed on behalf of the three murder suspects; Mothibeli Mofolo, Mabitle Matona and Haleokoe Taasoane, while the respondents are the first accused Thabo Tšukulu and the Crown Council in the matter.
Hungwe said fairness is not a “one-way street conferring unlimited rights and the accused demand the most favourable treatment, but also requires fairness to the public. This does not mean that the accused’s rights should be subordinated to the public’s interest. The purpose of the said trial is not to make impractical conduct to the prosecution,” he said.
He added that the accused, who are now applicants in the “recusal case” were given a chance to plead but only the first accused pleaded while the rest declined, citing that they could not plead in the absence of their lawyers who give them direction.
“On April 22, 2021 the accused were asked to plead on the charges during the indictment. Adv. Mda was absent on the day which was set for trial. The accused said they were unable to take a plea without instructions from their defence council. The court took a decision to say they pleaded not guilty basing itself on the Criminal and Evidence Act 165.
“The applicants were now facing the possibility of the trial in the absence of their council and it was ordered that there must be a state lawyer to represent them. The case trial was then postponed to April 27,” he said.
“The applicants are the second, third and fourth accused in the matter, while the respondents are the Director of Public Prosecution and the first accused.
“Judges ought not to be too regulate to accede any allegations of absence of impartiality or bias,” he said.
He further explained that the job of a judge is to serve the interest of the public and the accused in a fair and balanced manner. He said leaving the case would give the applicants a chance to find their own judge who would judge in their favour.
“To do so would encourage parties to believe that disqualification of a judge will have their case tried by someone who they think is more likely to serve the case in their favour.
“It must also be borne in mind that the responsibility of a judge is to safeguard both the rights from the accused as well as the interest of the public in the administration of justice. Judicial officers everywhere are nonetheless required and expected to administer justice to all persons without fear, favour or prejudice acting in accordance with the law and the constitution.
“Judicial officers must resist all manner of pressure regardless of where it emanates from,” he said.
“At the same time it must never be forgotten that an impartial judge with the fundamental prerequisite for the fair trial and the judicial officer should not hesitate to recuse him or herself if there are reasonable grounds to apprehending that the judicial officer for whatever reasons was not or will not be impartial.
“The person considering the alleged bias must be reasonable and the apprehension of bias itself must be reasonable in the circumstances of the case,” he said.
He said the applicants failed to counter attack the dismissal of the affidavits which he said its ruling was based on the legal points.
“The ruling relating to the discovery application was made on the basis other than that contrived by Mda. He suggested that the court dismissed the application nearly before the applicants fairly filed their answering affidavits within the timeline stipulated during the oral submissions.
“On the contrary, the court acknowledged the fact that the answering affidavits were filed very late. The basis of the dismissal was based on the strengths of the legal points raised by the respondents. The applicants did not counter attack the argument in their oral submission,” he said.
Hungwe said the trial of the case will continue with him presiding on May 18 to 21, 2021.