Pretoria high court Judge Bert Bam on Tuesday dismissed an application by Richard Mdluli for his recusal, filed 10 days after the state brought an application to bar him from further delays in his fraud and corruption trial.
In dismissing the application by the Zuma-era crime intelligence boss, whose descent from grace began a decade ago, Bam said it lacked substance and bordered on being undertaken in bad faith.
The reasons for recusal given by Mdluli’s legal counsel included that the judge was biased and failed to apply his mind when issuing a warrant for his arrest in early March.
The warrant was issued after Mdluli repeatedly failed to appear in court and his lawyers snubbed the state’s request that it submit a list of all pre-trial applications it intended to bring in the matter.
Mdluli was arrested in September 2011 on fraud and corruption charges stemming from the alleged embezzlement of R69-million from the police’s intelligence slush fund.
But the charges were dropped three months later by then senior National Prosecuting Authority official Lawrence Mrwebi.
The decision was successfully taken on review but it took years to secure the declassification of relevant documents. It was only in August 2020 that Mdluli, former crime intelligence manager Heine Barnard and former senior officer Solomon Lazarus finally appeared in court to face 19 charges.
Mdluli’s attorneys then signalled that they would bring a number of pre-trial applications, involving among others his ability to testify on covert police processes.
In October last year, they were then asked to submit an exhaustive list of all pre-trial applications contemplated. However, the attorneys responded by noting that they were seized with preparing to appeal the five-year sentence Mdluli is serving for kidnapping a love rival.
“For now, our attention is focused on preparing and compiling our papers for the appeal against his convictions and sentences and [we] cannot give this matter any attention,” the prosecution quoted from their correspondence in its application.
Mdluli then missed four court dates, prompting Bam to issue a warrant for his arrest on 4 March.
In February he claimed an undisclosed illness prevented him from coming to court, after his attorneys had earlier cited logistical difficulties in ensuring his attendance with correctional services authorities. They had also informed the court that they would bring an application that the state pay for an advocate of Mdluli’s choosing to defend him.
On 26 March, the state filed an application in terms of section 342A of the Criminal Procedure Act to prevent him from forcing any undue delays.
“Although the current delay is only five months it is respectfully submitted that the honourable court should have regard to the fact that due to interference the total delay in this matter is now close to 10 years,” the state submitted.
“Whereas the prior delays can be attributed to various persons,” the submission said, it added that the delays since October 2020 could only be attributed to Mdluli.
The state added that Mdluli was robbing his co-accused of the right to a speedy and fair trial by delaying and frustrating the process.
It asked that the court rule that the pre-trial would commence on 18 June, regardless of whether Mdluli had secured funding, and the trial on 4 October.
However, after discussions with Bam and Mdluli, who was at court on Tuesday, the state abandoned the application. The judge gave Mdluli one month to bring an application for state funding for his legal fees.
Mdluli, a close ally of former president Jacob Zuma, was jailed last year for kidnapping, assaulting and intimidating Oupa Ramogibe in 1998. Ramogibe died after the kidnapping.