Accusations that the State was "shopping" for Judges, alleged sarcastic laughter and snide remarks by the defence, the presiding officer's "tone" while questioning a witness, and the credibility of a detective known for carrying a clipboard.
These were just some of the issues raised during Judge Denzil Potgieter's recusal application in the Gqeberha High Court on Tuesday.
State Advocate Ismat Cerfontein brought the application for Potgieter to recuse himself in the murder trial of Malibongwe Dwabayo, based on a reasonable apprehension of bias by the presiding officer.
Dwabayo, 55, is accused of killing his 39-year-old girlfriend, Andiswa Mpiyana by throwing her off the balcony of his fourth-floor apartment in Central.
Her body was discovered in the parking lot of the block of flats on 3 July 2022 and the State alleges that the murder was premeditated.
Police had initially opened an inquest docket pending further investigation, but further probing by the investigating officer, Detective Constable Ridwaan Baatjies led police to believe that she did not commit suicide, instead, foul play was suspected.
The issue surrounding Baatjies' credibility took centre as Cerfontein and defence Advocate Elsabet Theron presented their arguments in support of and against the recusal.
According to Cerfontein, the defence sought to attack Baatjies' credibility during cross-examination by bringing up the issue of his disciplinary hearing within SAPS and further stating that he had brought the SAPS into disrepute.
"This is recklessness on the part of the defence council," said Cerfontein, adding that Baatjies' interests should be protected.
Potgieter asked Cerfontein whether the State was suggesting that the Presiding Judge has a personal interest in the matter and whether the court is acquainted with either the accused or the deceased.
To this, Cerfontein answered: "No, my Lord."
Potgieter then asked whether the State could accept that both counsel is not personally known to the Judge and that it was both their first times appearing in court in front of the presiding officer.
Cerfontein's answer in this regard was, "Yes."
She also answered affirmatively when Potgieter asked if the State could accept that the Judge is not personally acquainted with Baatjies and that the first time the Judge ever saw Baatjies was in court.
"So now you say there is reasonable apprehension of bias fundamentally based on what transpired when Baatjies testified, in conjunction with the court allowing cross-examination about his disciplinary hearing," Potgieter remarked.
Cerfontein contended that the Baatjies issue was the crux of the application, adding that the court allowing the testimony of two other witnesses in conjunction with this played a role.
When addressing the issue of Baatjies and the clipboard he carries with him that came up during cross-examination Cerfontein said the "tone of the court" created an impression of bias.
To this, Potgieter said: "What tone, I can't understand it. Are you saying that the court was mocking the witness, is that your submssion?
On the issue of the deceased's sobriety, Cerfontein said the court seemingly accepted that she was "staggeringly drunk."
She also said Baatjies became "apprehensive," "uncomfortable," "unnerved," and "rattled" by the court's questioning when it came to informing the accused of his rights.
Potgieter said Baatjies dealt with this in his testimony and that is why it was further explained.
"It did not fall from the sky.
"You led him. How can it be irrelevant?
"Did you lead irrelevant stuff," Potgieter enquired.
According to Cerfontein, Theron let out a "sarcastic laugh" when the court further questioned Baatjies on the SAPS guidelines.
"Is that your view or is this what Baatjies says?
"What is the complaint about? How does it fit into this application," Potgieter wanted to know.
Cerfontein said the response to Baatjies' answer was "sarcastic" and "unwarranted" and that the court should have rebuked the defence council.
She conceded that she did not object to the sarcastic laugh.
Theron said the reason the State wanted the record transcribed was to read it to find grounds for the recusal application.
She stated that not a single objection was raised to the points that were now raised by the State which they believe constituted bias.
"I submit that this application is not based on facts in this matter, but on subjective beliefs and suspicions."
Theron pointed out that the court transcript reflects that the State understood that the court was merely asking clarifying questions.
"A criminal trial is not a game and the Judge is not just a spectator.
"The only person that is being prejudiced here is the accused.
"In the three months it took us to get here his trial could have been finalised."
Theron said the State did not object when the so-called mockery took place when questions were raised about Baatjies and his clipboard.
Regarding the sobriety of the deceased, Theron said she had no idea how the State came to the conclusion that the court agreed with her that the deceased was "staggeringly drunk."
"It shows subjectiveness on the part of Baatjies.
"He was subjective from the time he entered that witness box and when he asked that his legal practitioner be present in court to protect his interests."
Theron further said the issue of Baatjies being under investigation was not a hidden fact, because it had been in the press.
"On that basis, and the instruction from my client, those questions were put.
"If I come to know about a charge and an investigation hearing that led to a finding of suspension surely I am allowed to put it to a witness."
"At the end of the trial-within-a-trial a credibility finding will be made," she said.
On the issue of the "sarcastic laugh," Theron said it was laughable that the State would even bring this up as a reason for recusal without being able to properly explain the alleged laugh.
She added that she was very impressed with the court record that transcribed the word "Pfff" where she is alleged to have laughed sarcastically.
Theron questioned why Baatjies needed to be protected at all costs when according to her he is a witness just like any other.
"It is not Baatjies that is on trial here. The accused's life is at stake. He's the one that stands to be convicted and sentencted.
"There is nowhere they (the State) can say the Judge was not open to persuasion by evidence or that wanted to prejudice Baatjies."
Potgieter will deliver his judgment on 14 February next year.
Dwabayo's bail has been extended.
