Hungwe recusal bid fails

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Mohalenyane Phakela

JUSTICE Charles Hungwe has dismissed an application for his recusal from presiding over the trial of four police officers accused of the March 2016 murder of their colleague, Police Constable Mokalekale Khetheng.

Justice Hungwe dismissed the application on the grounds that the three applicants had failed to demonstrate how he was biased against them as they had alleged.

The three are Superintendent Mathibeli Mofolo, Inspector Mabitle Matona and PC Haleokoe Taasoane. They are charged alongside another senior police officer, Senior Superintendent Thabo Tšukulu.

In their court papers filed last week, the trio had argued that Justice Hungwe had already shown signs of bias when he suggested that they were deliberately delaying the trial by refusing to plead in the absence of their lawyer, Advocate Zwelakhe Mda.

They also argued that Justice Hungwe had shown bias when he dismissed their 29 March 2021 application to be furnished with documents pertaining to their arrest in 2017.

They therefore wanted the Zimbabwean judge to recuse himself from trying them on the grounds that he was unlikely to afford them a fair trial.

However, Justice Hungwe on Tuesday dismissed their application and ruled that their trial will proceed on 18 May 2021.

Handing down his judgement, Justice Hungwe said, “the fact that a judicial officer has made an adverse ruling against a party cannot be a basis for apprehension of bias.

“Were this not the case, any party who lost an interlocutory application would have a legal basis to seek the recusal of a judge thereby preventing the matter from proceeding to finality.

“The very act of basing an application on the wrong facts disqualifies the applicants from meeting the requirements for test for bias. A reasonably informed and objective person relies on the correct facts in deciding whether a judicial officer may not bring an impartial mind in the adjudication of a case. A reasonable person does not jump to conclusions by taking a skewed and twisted view of facts or circumstances. He seeks a good understanding of facts before jumping to conclusions.

“Again, a reasonable person establishes facts from which he formulates an opinion regarding a judicial officer’s impartiality. Clearly the applicants have dismally failed on this score to demonstrate that their apprehension of bias is based on the correct facts. On the contrary, it is an unreasonably held apprehension of bias. For those reasons I dismiss the application. The matter is therefore postponed to 18 May 2021 for continuation of the trial,” Justice Hungwe ordered.

Barring any fresh delaying tactics on the part of the accused, the murder trial will now proceed with witnesses taking the stand beginning 18 May 2021.

Former Deputy Prime Minister Monyane Moleleki and former army commander Tlali Kamoli have been lined up by the prosecution as part of 53 witnesses to testify against the four officers.

At the time of PC Khetheng’s murder, Mr Moleleki, who now leads the opposition Alliance of Democrats, was the Minister of Police and Public Safety in the Pakalitha Mosisili-led seven party coalition which lasted from March 2015 to June 2017.

Former Defence and National Security Minister, Tšeliso Mokhosi, and former National Security Services (NSS) Director General, Mohlakala Lerotholi, are the other prominent witnesses expected to testify at the trial.

 

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