State applies for recusal of magistrate in Mboro case

The state claims remarks allegedly made by Magistrate Katlego Mokoena, to the previous prosecutor Pheello Vilakazi, implied potential bias.

Motsoeneng and his bodyguard Clement Baloyi appeared before the Palm Ridge Magistrate’s Court on Wednesday, where they relaunched their bid for bail on new facts.

The pair were denied bail on 19 August and a third accused, who is related to Motsoeneng and cannot be named, was released on warning.

The men were arrested on 5 August after a video depicting them brandishing pangas and forcefully removing two minor children from a Katlehong school went viral.

Taking the stand as the state’s witness, Vilakazi said at a previous appearance, the presiding officer asked him to tell a member of Motsoeneng’s legal team to meet her in chambers, but the same invitation was not extended to him.

He alleges that the magistrate then advised the member to “fix” their clients’ bail affidavit, which she had lambasted as “shoddy” and a mere “copy and paste” when handing down bail judgment, saying the reason the initial application failed was because it was poorly written.

Thereafter, Vilakazi says, he later learned that Motsoeneng would re-apply for bail on new facts.

MYSTERY SHROUDS PREVIOUS COURT APPEARANCE

Vilakazi told the court that he was not aware of any arrangements to secure Motsoeneng’s appearance before the court after the matter was postponed to 21 October. He is adamant he didn’t sign any requisition forms to authorize the accused’s transportation from prison to the court.

“[On 30 August] I bumped into Mr Motsoeneng’s lawyers who asked me when the matter would be starting. I didn’t know what he was talking about; that’s when he told me that they had brought a bail application on new facts.

“I told them I had other matters in court, but I would try to find out what was happening. When I approached Ms Mokoena to ask if she was aware of this, she confirmed that she does know and added that I didn’t have to worry about it because my colleague from [district court 3] would handle it.”

Speaking to the media ahead of the proceedings, Motsoeneng’s lawyer MoAfrika wa Maila confirmed that they too were not informed about their client’s court appearance on the said date.

“There are two of them, but [Motsoeneng] was alone [ in court]. When we came here nobody knew who made the requisition nor why he was in court. Yet those on record were not there, and the matter appeared before the court. These are some of the issues that leave us with many questions,” a dissatisfied wa Maila said while threatening to approach a higher court on behalf of his clients.

In court, State Prosecutor Kenny Ramavhoya questioned why the matter went ahead without the prosecutor and the attorneys on record, adding that the police and the prosecution learned about the appearance in the media.  

“We hold the view that it should have been refused, and the court should have said, ‘Go back because you’re not properly before court and the requisition that should have been part of proceedings is still not here’.”

Later, as the court moved to postpone the matter, defence lawyer Phillip Dlamini stressed that they believed their client’s life was in danger due to what he calls the state’s “shambolic” handling of the case with no one being able to account for how Motsoeneng ended up in court.

DEFENSE ACCUSES STATE OF DELIBERATE DELAYS

Motsoeneng’s lawyers say the state has not presented substantive evidence to back its push for the magistrate to step off the matter. Instead, they claim the state is deliberately frustrating their client’s attempts to hear his new bail application.

Advocate Dlamini argued that the fact that bail had been denied by the same presiding officer, who was scathing in her judgment, demonstrated that she was not biased.

Earlier, Wa Maila said Motsoeneng spent over R100,000 for each day he spent in court, and that the delays are hitting him in the pocket because his continued incarceration also means he is not generating an income.

While on the stand, Vilakazi testified that Mokoena had asked him why he was “hard” on Motsoeneng and what the preacher had done to him. He says he found this conduct worrying and approached the investigating officers to share his concerns. The policemen then informed Ramavhoya and that’s how the state decided to bring the recusal application.

Mokoena said she would need time to apply and asked if she could postpone until 13 September, but Motsoeneng’s lawyers complained he had suffered enough delays.

They requested that his bail hearing should continue the same day if judgment was in their favour.

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