Durban magistrate recuses herself from murder trial amid racial allegations
A murder trial has become embroiled in allegations of racial bias
Image: File
ALLEGATIONS of racial bias have disrupted a key murder trial from the Durban July 2021 civil unrest, pitting the prosecutor against the magistrate and exposing simmering tensions within the justice system.
At the centre of the controversy is an alleged statement “What were Indian people supposed to do under the circumstances because this was a situation of panic?”.
According to Senior State Prosecutor Advocate Bonginkosi Mbokazi someone had allegedly overheard Senior Durban Magistrate Betty Rawheath making the remark during the pre-trial stage of the case in which Inderan Malcolm Govender is accused of murder and attempted murder.
Mbokazi raised the issue in the midst of the trial at the Verulam Regional Court last week, asking Magistrate Rawheath for a postponement because he intended to apply for the magistrate’s recusal.
His remarks prompted the magistrate to step aside, even though no formal application had been made.
Rawheath, 70, has been a judicial officer for more than 40 years and in the criminal justice system for 48 years, said she recused herself from the case due to her judicial term ending this month.
"The court refused to postpone the matter mainly for the reason that this court would not be available next year to resume this case as my term of judicial service ends this year. It would probably be a month that I have within which I have to try to complete as many cases as I already have before I leave the bench," she said.
She said it was preferable in her view that the matter commence de novo (from the beginning) before any other available court and thereby minimise the prejudice to the interest of both parties as any recusal application will cause one or the other, or both parties in this case, a considerable amount of prejudice.
Mbokazi said he was not in court on day the magistrate was alleged to have made utterances about the case that were of a racial nature.
"I was concerned by the conduct of the magistrate. She prejudiced the entire situation. Even if she was to find the accused not guilty, people won't see justice because of her earlier comment," he said.
Mbokazi believed the magistrate was going to find the accused not guilty even though he has a strong case, adding that the accused was alleged to have attacked innocent boys.
He said the case has racial connotation because Indians were accused of killing African people.
Govender's trial started in September and he has pleaded not guilty. He has been charged for the murder of Mondli Majola and attempted murder of Nkululeko Mangwe. The men were among those attacked by a mob in Palmview, Phoenix in July 2021.
Roy Singh Attorneys, who are representing Govender, in a statement said they found it very concerning that the State decided to play the race card when they realised the trial was not going their way.
"If the prosecutor felt that the magistrate had made racial slurs in the outset, he should have requested the recusal at the beginning of the trial. This is a clear indication of sour grapes, and this is a serious ethical and moral dilemma.
"We also regard this as a serious insult to a senior magistrate who has served in the Department of Justice for many years. We are shocked and in disagreement with the action the prosecutor had taken in this manner," read the statement.
KwaZulu-Natal National Prosecuting Authority spokesperson Natasha Ramkissoon-Kara said they were aware that the magistrate has recused herself.
"We will await further trial dates," said Ramkisson - Kara.