Mbabane: Mbabane Senior Magistrate Sifiso Vilakati has recused himself from the case of Hosea Member of Parliament Bacede Mabuza following the public prosecutor’s application for the senior magistrate to do so, following the listening of an audio recording proving the assault of the legislator by the police.
The public prosecutor said listening to the audio proved procedural irregularity and biasness which would lead to the unfair trial of the legislator.
A recusal application is an application calling for the judicial officer presiding over the case to disqualify himself from involvement in the case on the ground that he or she is biased. A recusal application can be based on either actual bias or apparent bias.
It is generally a matter of whether the judicial officer might not bring an open mind to the resolution of the question that he or she is required to decide. The said audio was played in the absence of a certificate authentication same in terms of the Electronic Evidence Regulations.
MP Mabuza faces eight counts including the alleged advising of one Siboniso Simelane not to allow police officers, led by Senior Superintendent Clement Sihlongonyane not to enter into certain bedsitters or premises belonging to Sifiso Mabuza at Mvutjini in Ezulwini.
Section 5 of the Electronic Records (Evidence) Act 2009 states that; ‘a person seeking to admit an electronic record in any legit proceedings as evidence has a burden of proving its authenticity by evidence capable of supporting a finding that the electronic records is that which that person purports it to be. Section 6 (2) states that the electronic record tendered in evidence for any purpose, such record shall be admissible if it is relevant and it is produced in an approved process.
The legislator’s attorney, Mduduzi ‘Tsotsi’ Mabila together with applicants approached Magistrate Vilakati in chambers wherein Mabila informed all present that he had in possession an audio depicting that during the arrest of the legislator he was assaulted by the police and it (audio) was eventually played from the cellphone in the possession of Mabila despite an objection by the public prosecutor that a proper procedure was to be followed before it could be listened to.
The public prosecutor premised its application on two (2) grounds being that Magistrate Vilakati acted unfairly and unsupported by law in allowing the application by the defence to play the audio recording in chambers purporting to be the legislator’s defence prior to him pleading to the charges. The applicant contended that listening to the audio before commencement of the trial created a reasonable apprehension of bias and that to the eyes of a reasonable person it created an impression that the magistrate would not bring an open mind in the trial of the legislator.
Secondly, the applicant contended that the objections Vilakati upheld in favour of Mabuza were detrimental to the crown’s case as they sought to prove the guilt of Mabuza.
Magistrate Vilakati stated that the respondents were opposed to the application on the basis that in an application for recusal the court had to determine whether a party can seek to deal with an issue that was not raised in chambers and also whether an error in law constitutes ground for recusal.
The magistrate further stated that the respondents argued that the test for recusal is actual bias or reasonable apprehension of bias, contending that there was nothing wrong with the court listening to the audio and that the applicants had not objected to the application by the defence. The issue of the audio was not raised in chambers when the application for the magistrate’s recusal was initially intimated. The magistrate further contended that if indeed the listening of the audio was an error in law on his part then the applicant ought to have waited until the conclusion of the trial and thereafter lodged an appeal.
In this case, the authenticity of the audio recording was not established prior to the listening and neither was the approved process.
Defence attorney, Advocate Mabila stated that upholding or dismissing of objections is not a factual issue but a legal one and that an ordinary man in the street cannot be in a position to know about such legal process. “A reasonable person on the street can only reasonably apprehend biasness on factual issue,” said Mabila, arguing that in a trial upholding or dismissing objection was a norm and there was nothing peculiar in that.
Approving the application to recuse himself Magistrate Vilakati said as a judicial officer he must be impartial, open minded and uninformed adjudicator in the sense that he takes cognizance of only facts about the case which are proven in court in the usual way.
“It is my duty as a judicial officer to hear every case that comes before me and to apply the law impartially without fear, favour or prejudice, and therefore in the interest of justice and fairness I will accordingly recuse myself from this matter,” concluded the magistrate.