Chief Justice dismisses DPP’s recusal application

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…accuses DPP Motinyane and Advocate Abrahams of having misled the court and having a cavalier attitude towards the court

By Itumeleng Koleile

Chief Justice Sakoane Sakoane yesterday dismissed Director of Public Prosecution Hlalefang Motinyane’s recusal application on grounds that she brought to court a false proposition alleging the court is biased against the Crown.

Sakoane, handing down his judgement on the recusal application by Motinyane prompted by an enquiry of the court into whether she lied under oath or not that resulted in South African lawyer, Advocate Shaun Abrahams being relieved of his duties as lead prosecutor in the treason trial.

The Chief Justice said the grounds for Motinyane’s application were not factual as in her affidavit; she had stated what she was told by the council who was in court, who did not give her the correct facts.

Sakoane had on January 17th conducted an enquiry that was a result of Abrahams having re-appeared before the court claiming he was back to resume his duties as a lead prosecutor when Advocate ‘Naki Nku had already been given instruction to take over the case.

Abrahams had missed the trial date that was set for the 10th to the 22nd January which resulted in Nku being appointed as lead prosecutor.

Nku’s appointment followed Motinyane’s application for the postponement, with which she told the court that Abrahams would not be available for the set dates due to other commitments in South Africa thus sought a postponement.

“Abrahams had committed together with another council on December 13th 2021 that they would be present for the trial dates that were set.

“The commitment was also made by Advocate Letuka Molati after having informed the court that he might not be available due to health reasons.

“However, after being made aware that he could pass on the brief to another council he said due to the time he had spent on working on the brief he would rather not pass it and instead committed to being available,” Sakoane said.

He said he was however surprised by the cavalier manner in which Abrahams and Motinyane treat the court.

“They want the court to accept what they told in the application for postponement and that appointment of advocate Nku as lead prosecutor thrown out,” he said.

He said their behaviour is completely unacceptable.

During the enquiry that was conducted under the Speedy Court Trial Act No.9 of 2002, both Motinyane and Abrahams had given contradictory evidence as Abrahams denied some of the issues Motinyane had raised in her affidavit.

While reading his judgement, Sakoane told the court that among the rights that were entrusted to her as the Director of Public Prosecutions, Motinyane has to avoid bringing “frivolous applications by lying and giving false information”.

“A lawyer who misplaces information before the court or makes a contention which is false is not fit to remain a member of the profession.

“It behoves the DPP and another counsel for the crown in criminal matters to protect the integrity of the criminal justice system by being honest, candid and truthful at all times,” Sakoane said.

He added that Motinyane concedes that the court is entitled to conduct an enquiry if the prosecutor seeks to postpone a matter on the basis of falsehood and can be sanctioned.

He however said Motinyane contends that expelling a lawyer from the case is not one of the contemplated sanctions.

“The contention exposes the DPP’s ignorance about the powers of the court,” he said.

As per the law, one of the sanctions is to deny a prosecutor the right to practice before the court for a period not exceeding 90 days.

He reiterated that a prosecutor may be denied a right of appearance if he files a frivolous application for the purposes of delaying a trial or seeks postponement on the basis of a statement that she knows to be false.

Sakoane said reasons for Motinyane’s application were that the court refused to entertain the application for a postponement until it was withdrawn, casting negative assertions against further particulars that were provided by Abrahams to the defence counsel, denying Abrahams from being lead prosecutor and assuring defence that no further postponements would be available after the hearing of the recusal application.

“The right to be tried by an impartial judge is of fundamental importance in our justice system,” he said.

He said the court cannot entertain evidence based on hearsay.

“The general rule is that hearsay evidence is not permitted in evidence hence it is usually necessary to file an affidavit from the person who is the source of information,” he said.

He added that there was no supporting affidavit from the council who represented Motinyane.