Iuze Mukube 

For the first time, ex-Cabinet minister Sacky Shanghala and his co-accused Ricardo Gustavo find themselves diametrically opposed on the way forward in the protracted Fishrot matter that has faced legal harbingers from the genesis. 

This week, the duo disagreed on the fitness of the presiding officer, Acting Judge Marilize du Plessis. 

On one hand is Shanghala, who believes “judges are not angels”. 

He contended, saying, “Judges are but men and are swayed like other men by vehement prejudices.” 

From where Shanghala stands, Du Plessis should not be anywhere close to presiding over the Fishrot matter. Gustavo, on the other hand, is opposing any attempt by Shanghala to remove Du Plessis from presiding over the long-running corruption trial, arguing that the application is aimed at delaying the start of the case. 

Gustavo argued further that the application to recuse Judge Du Plessis is not supported by facts showing bias. He stated that the allegations are based on speculation and that the judge has not made decisions that violate the rights of the applicants or create a reasonable perception of bias. 

Gustavo added that the recusal application was filed after the court dismissed a postponement application brought by several accused in January this year. According to him, each time the trial has been set down, interlocutory applications have been filed, which have prevented the proceedings from starting. 

Meanwhile, Shanghala, quoting Plato, stated that “four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.” 

However, he argued that previous pronouncements made by the presiding judge show that she already has a preconceived view. 

He argued that where a judge has previously pronounced himself or herself over a matter that would become an issue in the litigation before him or her on trial, the judge ought to recuse himself or herself. 

The impartiality of a judge goes to the heart of a matter and is fundamental to a fair trial, he said. 

He stated that the recusal application is centred on the utterances of the judge and her favourable treatment of the state. 

He added that the application also looks at the ruling of the judge in depicting the exercise of their rights as a deliberate delaying tactic. 

The utterances that their application was a delaying tactic amount to bias, which the presiding judge acquired before taking the bench. He stated that such pronouncements by the presiding judge form a valid ground for a reasonable apprehension to be formed by him and his co-applicant, James Hatuikulipi. 

Gustavo does not buy this, arguing that Shanghala does not have the authority to bring the recusal application on behalf of another accused. In no uncertain terms, he said, Shanghala is not the legal representative of Hatuikulipi. 

The former Cabinet member, regardless, laid out four grounds upon which the application relied. 

The first dealt with contending that the court has been quick in finding that the pending and previous applications they lodged were without merit. 

Secondly, he said, the court is exacting different standards for the parties before the court, being more stringent with the applicants and lenient with others. 

Thirdly, he said the court “mischaracterises the pre-emptive collateral review application and bases her understanding of said application on the pre-2023 pronouncements of the Supreme Court.” 

“Fourth, the court predetermined a matter that will come to life before it, an application that dealt with the exercise of the functions of the Inspector General of Police and the officers,” whom he allegedly directed to collect specific investigations. 

He argued that the facts presented justify an apprehension of bias, and as the alleged bias relates to matters that will be heard later in the trial, it justifies the recusal application. 

He also said that the judge has consistently displayed from the get-go in her utterances, judgement and conduct that she is “closed with regard to particular issues and not perfectly open to conviction.” 

The matter continues. 

–mukubeiuze@gmail.com