The firearms-related trial of Economic Freedom Fighters (EFF) leader Julius Malema and his bodyguard, Adriaan Snyman, has taken a new twist with a defence application for the recusal of Magistrate Twanet Olivier.
Olivier is accused of being biased and of taking a prosecutorial role.
The problem started during the testimony of Samuel Kwata, an employee of a service provider at the EFF's fifth-anniversary event at Sisa Dukashe Stadium in East London in 2018, audio-visual company Gearhouse.
Olivier had asked Kwata to identify Malema in a video admitted as evidence.
She indicated when the slow-motion clip should be paused and asked Kwata if he could see the firearm Malema was carrying in the video.
Her questioning seemed to have irked Malema, who tried to get the attention of his legal team. But his lawyer couldn't see him.
A visibly agitated and frustrated Malema then stood up and shouted:
She is prosecuting us now! We are being prosecuted by her!
Afterwards, he sat down again.
His advocate, Laurence Hodes, SC, and his co-accused's advocate, Shane Matthews, then addressed the court.
Matthews was the first to argue: "I just want to put my objection on record for Your Worship's questioning. You have asked this witness to go far further from simple clarification. You are, in fact, leading the evidence as if you are a prosecutor."
Hodes pointed out that when Kwata said he couldn't identify Malema on the stage, Olivier asked him how that was possible. That was followed by the video, in slow motion, and more questions from Olivier about the object Malema was carrying.
In her defence, Olivier said she didn't have the parties' evidence before her and would, now and then, ask a witness to clarify something.
EFF spokesperson Sinawo Thambo said the party supported the recusal application.
"She has shown herself that she's got a particular interest in how this matter must conclude. She has shown herself to be biased and has led that witness into making critical observations, contrary to what he had made in the beginning, and that was uncalled for," Thambo said.
The matter continues on Thursday with the recusal application.
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