Africa-Press – South-Africa. Bias concerns have prompted five of six allegedly illegal mining kingpins to apply for a Carletonville magistrate’s recusal from their bail proceedings.
Bethuel Ngobeni, Nhlanhla Magwaca, Moseki Sechele, Thabo Sechele and Khudzai Mashaya applied for bail before Magistrate Howard Raath in the Oberholzer Magistrate’s Court on Wednesday.
However, through their lawyers, they alleged that Raath would be biased against them because of a comment he had made during the bail hearing of their co-accused, Dumisani Moyo, which he dismissed.
Ngobeni’s lawyer, F Mashele, addressed the court at length on why Raath should recuse himself.
He added that Ngobeni was worried about the comment that “zama zamas are a problem in the country”, which Raath had made in Moyo’s matter.
“The State didn’t call the investigating officer to oppose bail. The State claimed all accused are linked through an investigation that started in 2018. The court then ruled that the accused are linked [to the crime]. The court knows the facts of the matter. I submit, with respect, an application for the recusal of the presiding officer.”
Mashele continued that the recusal of judicial officers had been discussed in various courts in the country.
Zama zamas
“The recusal should not be seen as an insult or to undermine the court. The court said zama zamas are problematic in Carletonville, Port Elizabeth and Mpumalanga. Will the court change its attitude and be objective? The answer is no.
“Zama zamas are humans living in South Africa. The Constitution protects them. They are labelled as problematic.”
“The fact that the court has made comments shows it is already prejudiced towards them. They will never have a free and fair trial.”
He added that judicial officers need to be sensitive at all times.
“The court is compromised and in a conflicted position. The court should consider recusing itself from the matter. This court would never be prejudiced should another court hear the application.
“The court claimed, after listening to Moyo’s hearing, it didn’t know anything about the rest of the bail applications. That is not true. The charge sheet before the court is very detailed. It heard that since 2018, there has been a covert operation in terms of entrapment against the accused. The court knows all,” Mashele added.
Other legal representatives, BM Mashele, N Mashele and advocate Jurg Huysamen, concurred with Mashele.
Moyo, Ngobeni, the Secheles, Magwaca and Mashaya were arrested in Khutsong and Carletonville last month after a Hawks investigation that started in 2018.
Levels
They were reported to be on Levels 2 and 3 in an illegal mining syndicate.
Those on Levels 2 and 3 buy precious metal-bearing material from zama zamas, process the materials and sell them to the Level 4 and 5 members, who are out of the country.
The six accused face charges of fraud, possession of ammunition, possession of drugs, money laundering, contravention of the Immigration Act and contravention of the Precious Metals Act.
The hearing continues.
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