Magistrate Dreyer van der Merwe on Tuesday denied an application from former spy boss Billy Masetlha’s defence team for his recusal from the case at the Hatfield Community Court in Pretoria.
”The facts presented by the defence are not substantiated to merit a recusal,” the magistrate said after deliberating over the application for about two hours.
In delivering the judgement, Van der Merwe said he did not take the application personally and that he believed that ”no one is above criticism”.
Masetlha’s defence attorney, Neil Tuchten, brought forward the application for the recusal after it was heard that the magistrate held a meeting with the inspector general if intelligence’s legal adviser, Jay Govender (who is a witness in the case), without the defence team being present.
Govender put forward a request (to the magistrate) for certain records to be removed from court records as they were of national security. The records were meant to be seen by the legal team only. This was done in the magistrate’s office.
Tuchten argued that ”any kind of discussion in absence of defence with a witness or a prosecutor is a fatal irregularity”.
The defence attorney explained to the court that Masetlha was ”deeply disturbed” and ”does not trust the magistrate to be impartial” in the case, hence the application for a recusal.
The magistrate countered and said he did not inform the defence of the request to have papers removed from the court records as the records were irrelevant to the case.
State prosecutor Matric Luphondo also argued that Govender was protecting the interest of the inspector general as his legal adviser, that the records were of a classified nature and that at the time the request was handed to the magistrate, one of the assessors in the court was present. So the meeting was not held in secrecy, as the defence had said.
”There has not been any reasonable ground that there might have been some partiality in this matter,” Luphondo said.
Masetlha is accused of contravening the Intelligence Services Oversight Act by withholding evidence from Inspector General of Intelligence Zolile Ngcakani. — Sapa