A move by EFF leader Julius Malema and his bodyguard to have the magistrate presiding over their case recuse herself was thwarted when she dismissed the application.

A Daily Dispatch report says Malema and his co-accused Adriaan Snyman, who face charges around the discharge of a firearm relating to the party’s birthday celebration in Mdantsane in 2018, brought the application for recusal yesterday in the East London Magistrate’s Court, 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.

Magistrate Twanet Olivier had questioned state witness Samuel Kwata about video footage the state said was taken on the day in question. This caused an outburst from Malema, who accused her 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.

‘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. It can also hardly be suggested that a reasonably informed person in the position of the applicants would reasonably perceive bias upon hearing questions by a court conducted in accordance with procedure, which states questioning is not limited to evidence-in-chief or to what is emanating from cross-examination, but which aim is to obtain information and objective facts, nothing more and nothing less,’ Olivier said.

According to the Daily Dispatch, 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. Therefore in my view all that was established by this court during questioning by the court was indeed a process in which the court might clarify issues and obtain objective facts. The presumed bias is unfounded. The application to recuse myself in this matter is refused,’ she said.

The defence teams were instructed to continue with the trial.

Full Daily Dispatch report