Intense argument and an unprecedented legal debate were abruptly ended yesterday when the Delmas treason trial judge ruled that his statement on the dismissal of assessor Professor Willem Joubert could not be contradicted.
The future of the trial hung in the balance yesterday until the defence suddenly withdrew an application for the judge's recusal as a result of his ruling, Judge K van Dijkhorst then dismissed their entire application "in toto". This included the application for the quashing of the proceedings, the recusal of the judge and his remaining assessor, WP Krugel.
The application for the recusal of the judge "raises important questions about perceptions of justice", Professor John Dugard, director of the Centre for Applied Legal Studies, said yesterday. Commenting on what he termed an "extraordinary turn" in the trial, he said: "Justice must not only be done, it must be seen to be done. It seems difficult to believe that after this application the general public will have confidence in the subsequent course of the trial".
Earlier in the day, Judge K van Dijkhorst ruled a third report by dismissed assessor Professor Willem Joubert was inadmissable. Closing argument for the defence yesterday, after Joubert's third report was rejected, Arthur Chaskalson, SC, asked the judge to rule on Joubert's two earlier reports that had been filed with their application. Van Dijkhorst ruled that the second report contradicted his own account of Joubert's dismissal and struck out one paragraph. He accepted Joubert's first report, which alleged irregularities in his dismissal three weeks ago.
Dugard said: "I would like to comment more upon the subject. However it seems that South Africa has returned to the dark ages of the Sixties and early Seventies when the judicial office was protected by the threat of contempt of court. "We now seem to have reached the situation in which any challenge to the judge's presentation is contempt of court."
The basis of the defence's application for Van Dijkhorst's recusal was removed by his ruling, which would not allow the defence to contradict his statement concerning Joubert's dismissal. Chaskalson accordingly asked for a postponement until today. The judge refused. He then granted 15 minutes for Chaskalson to consult with the accused. A bemused gallery watched the lawyers and the accused file down to the cells. When they returned, Chaskalson announced that "in the circumstances we have been instructed not to proceed with the application" (for the judge's recusal).
Van Dijkhorst promptly ordered the application dismissed "in toto". He said he would give his reasons later and asked the defence "Do you have a witness available?" A silent court watched advocate George Bizos, SC call Accused No 7, Tsietsi Mphuti, to continue the defence case. According to legal experts, the accused will have to wait for the end of the trial if they want to appeal yesterday's decision.
The trial is expected to last for at least another year. The 19 accused — including UDF national leaders Popo Molefe and Patrick "Terror" Lekota — face charges including treason, murder and subversion. Six are on bail, while the other 13 have been in custody for two years or more.
