Claims of bias against the prosecution and that the court treated a witness unfairly in the murder trial of Malibongwe Dwabayo were dismissed as “unreasonable, unfounded and unsustainable” by Gqeberha high court judge Denzil Potgieter on Friday.
Dismissing the state’s application for him to recuse himself from the matter, Potgieter found that the state had failed to prove the “perceived bias” it alleged he showed towards Detective Sgt Ridwaan Baatjies during his testimony in court.
Baatjies is the lead investigator in the murder case against Dwabayo, who is accused of throwing his girlfriend, Andiswa Mpiyana, from the fourth-floor balcony of the flat they shared in Central, in July 2023.
The incident, which was initially ruled an accident and treated as an inquest, was changed to murder after the accused allegedly confessed to murdering his girlfriend while Baatjies was taking his statement.
However, he pleaded not guilty to the charge against him, and the admissibility of the alleged confession became the subject of a trial-within-a-trial.
This has subsequently led to a series of delays, much to the dissatisfaction of Potgieter.
During Friday’s proceedings, the judge gave his reasons for dismissing what he called an application that was “ill-conceived and bordering on frivolous”.
According to the application, brought by state advocate Ismat Cerfontein, the judge poked fun at Baatjies, shared jokes with the defence at his expense, and made comments that “intimidated and unsettled” him while he was giving testimony from the witness box.
The application claimed that Potgieter mocked Baatjies for bringing a clipboard with certain documents attached with him when he was called to testify.
During his testimony, Baatjies was also asked about Mpiyana’s blood-alcohol level.
It was stated that she was over the legal limit for driving, to which the judge responded that this evidence was irrelevant as Mpiyana was not driving when she died — a comment which the state claimed was a joke at her expense, while her family members were seated in the public gallery.
In response to the state’s application, defence advocate Elsabet Theron submitted that the state’s claims against the judge were ridiculous.
Potgieter said he could find no merit in the state’s claims that he had been biased against Baatjies.
“It is simply against my nature to be disrespectful towards anyone,” Potgieter said.
He said there was no reason for him to mistreat the witness and he had no personal interest in the matter.
He further stated it was the first time the state and defence attorneys appeared before him, so he had no prior dealing with them.
Potgieter said he was surprised when the state sought his recusal, as there were never any objections raised against his conduct during Baatjies’ testimony.
He said legal counsel could not use recusal as a strategy to shop for another judge.
The matter was postponed to May 12 for the trial to continue. Dwabayo is out on bail.
The Herald