A Western Cape High Court judge on Tuesday night rejected an urgent bid by senior African National Congress MP Nyami Booi to delay the start of his Travelgate trial.
Judge Lee Bozalek also declined to intervene in the trial magistrate’s refusal to allow Booi’s attorney to withdraw from the case.
Bozalek’s ruling, delivered just before 7pm, followed a morning of drama in which the attorney, Mario Wilker, and Booi walked out of the Cape Town Regional Court while magistrate Michelle Adams was still dealing with the case.
The judge’s decision means that while his fellow MPs are displaying their fashion finery at the opening of Parliament, Booi will be in the dock, pleading to charges of fraud involving parliamentary travel vouchers.
The trial was meant to start on Monday, but Wilker told Adams then he was withdrawing because he was not being paid.
When Adams refused to let him step down, he sought a two-week postponement to prepare. Adams gave him one day.
On Tuesday morning, Wilker told Adams he needed time to sit with Booi to prepare an urgent application for a high court review of her decisions.
When Adams denied his request, Wilker gathered up his file of papers and walked out of the courtroom, followed by Booi, who had been standing in the dock.
”I have to attend the high court in this matter,” he told Adams on the way out.
”I apologise, but in the circumstances I have no other option but to leave.”
Adams adjourned the court, and summoned both Wilker — who had not yet left the building — and prosecutor Jannie van Vuuren to her office.
When Adams returned to the bench she told Wilker she was granting a postponement of ”one further day”, to Wednesday ,to allow him to bring the application.
”If there’s a repetition of what happened this morning [Tuesday], the court will take stern steps against you and your client,” she said.
Wilker told the South African Press Association afterwards that Adams had warned him in her office that she would find him guilty of contempt.
”But she obviously reconsidered and gave us another day,” he said.
In an affidavit for the high court application, filed after 3pm, Wilker said he had no audit experience and would find it impossible to effectively cross-examine state witnesses without first consulting an auditor.
”Forcing me to remain in court … would amount to an infringement of [Booi’s] constitutional rights to a fair trial and, in my view, would constitute a travesty of justice,” he said.
Having to represent Booi without being paid would, in addition, ruin him financially.
Bozalek said in his ruling that he was unable to find the exceptional circumstances required for him to intervene at this stage of a criminal trial by ordering drawn-out review proceedings.
If the magistrate stood by her decision not to grant a postponement, and if that decision was irregular and unfair, Booi had the right to appeal if he was found guilty at the end of the trial.
Bozalek said Wilker had not yet been found guilty of contempt, and if he was, he would have his remedy in review proceedings or on appeal.
He added, though, that he had difficulty in seeing how Wilker could be compelled to stay on in the trial.
Earlier on Tuesday, another Cape judge rejected a bid by two of the four travel agents facing Travelgate charges in the high court to have their case struck from the roll.
Judge Hennie Erasmus said in a ruling on an application that was argued last month that the state had been ready to go ahead with the trial since July 2006, and it could not be said there had been any unreasonable delay.
He said the applicants, Estelle Aggujaro and Graham Geduldt, had not shown how refusing a stay of prosecution would prejudice them.
He did, however, reduce the bail of both Aggujaro and Geduldt, knocking it down from R100 000 each to R50 000 each.
He postponed the case to February 1 next year for trial.
Thirty MPs and a handful of travel agency employees have already concluded plea agreements with the Scorpions. — Sapa