Suspended judges inch closer in push for recusal
Mpho Mokwape | Friday October 14, 2016 17:00
The panelled bench ruled that the Registrar and Master of the High Court allow preparation of the necessary certificates that allegedly were missing from the record of proceedings given to the suspended quartet.
The suspended judges, Key Dingake, Mercy Garekwe, Modiri Letsididi, Ranier Busang in their bid to secure a fair trial and force the panel of judges to recuse themselves from their case wanted a complete record of proceedings.
The quartet was seeking for the registrar to be compelled to comply with rules of the High Court and provide all the records crucial to the pending recusal application.
When delivering judgement Justice Zibani Makhwade said the Registrar should direct the court reporters who prepared the transcripts to file the missing certificates as according to the rules of the High Court.
Makhwade explained that there was no certification in the transcripts that was provided to the judges and that there was no explanation tendered by the Registrar for such absence. In the judgement prepared by him and concurred by his peers Singh Walia and Leatile Dambe, he emphasised that a stenographer was an officer of the court who makes sure that accurate records of proceedings are captured.
“It is clearly not an onerous task to prepare a certificate in compliance with the rules. The transcripts cover only four different sittings and in my view it is not such a big task for the reporter to prepare the necessary certificate,” he said.
On the record of proceedings, Makhwade said it was according to the rules of the court and the Constitution that the Registrar was to keep a record of all court proceedings and to produce upon the direction of the judge or upon request by a party appealing.
He explained that if a party desired to have the record in terms of the rules the party apply to the judge to that effect.
Makhwade noted that in the judges’ case the court did not direct that transcripts be made or that there was any appeal before court.
“The registrar and the applicants laboured under a belief that the registrar had the authority to direct that the record be transcribed. Had the correct procedure been followed this application may not have been made. Now both parties are responsible for the current position,” he said.
In that case Makhwade ruled that any party wishing to have the record of proceedings amended should take the necessary action to do so within seven court days after the order was issued.
Makhwade stated that he agreed with the applicants that recusal application was largely premised on what was supposed to have transpired during the course of the proceedings in the matter.
Moreover, that it was essentially about what the presiding judges were alleged to have said on various occasions and that it was a normal practice to refer to the record of proceedings to determine whether application for recusal was justified.
“This is rightly so because the record should be definitive of what transpired. This would not require an extrinsic evidence from various parties including the presiding officer whose recusal may be at issue.”
On the respondents’ contention that the applicants were furnished with the transcripts, the judge said it was done only after the suspended judges filed for an urgent application.
He noted that there was not doubt from the affidavit that the transcript was only delivered after the application was filed and that the Registrar failed to respond to clear the allegations on the issue.
Further, Makhwade said the applicants demonstrated that at the time when the application was launched they were not in possession of the transcript attached to the answering affidavit.