The state prosecutor in the R24 million fraud trial against Nelson Mandela Bay's City Manager, Noxolo Nqwazi, and her co-accused is making a mockery of the justice system, and the magistrate is perceived to be biased towards the state.
This is the opinion of the defence attorneys in the case, who on Friday argued in favour of an application for Magistrate Vuziwe Mnyani to recuse herself.
The defence brought the application before the court on the basis of perceived bias, and after what they called a failure on the part of the state to provide full disclosure on the case docket.
Nqwazi is charged alongside suspended Human Settlements head Mvuleni Mapu, ANC regional secretary Luyolo Nqakula, and former DA councillors Mbulelo Manyathi, Trevor Louw, and Neville Higgins.
The business owners are Xolani Masela and his wife, Nwabisa (Thuthiko Logistics), their daughter Nonpumezo Ngotsha in her capacity as the director of Thuthiko Logistics, and Morne van der Linde of HT Pelatona Projects (PTY) LTD.
The accused are charged with fraud, money laundering, corruption, and contravening the Municipal Finance Management Act (MFMA).
The trial, which started on Monday in the Specialised Commercial Crimes Court in Gqeberha,has been marred by allegations that State Advocate Leigh-Anne Pillay-Selahle was using delay tactics because she was not ready to proceed with the trial.
She came under fire for not presenting the defense with cellphone records and other documents that pertained to the trial.
Arguing against the application, Pillay-Selahle said the defense bears the onus to prove that the presiding officer cannot be impartial.
She criticised them for bringing the application from the bar, without making any formal statements under oath.
"For them to say that I'm hiding things is a vicious accusation.
"I take serious exception to that because it's an attack on my character," she said.
Nqwazi's attorney, Alwyn Griebenow said it has been eight months since they have received a charge sheet, yet the state has plenty of excuses for why they cannot get a full disclosure of the case docket.
"This case is a very serious matter. Even the media has been here every day this week following the trial.
"The state's failure to disclose makes a mockery of the justice system."
On the perceived bias, Griebenow listed the problems they faced since the trial was originally set down to start in June.
"The impression was created that the court bent over backward to accommodate the state."
Pillay-Selahle raised an objection during Griebenow's argument.
In response, he said: "The state jumping up during my argument is proof that the court cannot even stop them to let me finish."
Advocate Anneline Roestorf, appearing for Morne van der Linde and HT Pelatona (Pty) Ltd said she was "perplexed" by the argument raised by the state.
"Not once did she address us on the grounds that form the basis of the application for recusal.
"She is still addressing us about outstanding documents that have nothing to do with the application before this court."
According to Roestorf, the court did not take the accused's right to a fair trial into consideration.
"The court created the impression on the accused that the court cannot be fair."
She also said that the court granting the state an adjournment to go and prepare her response, was yet again a way that the court was assisting the state.
Mnyani will deliver her judgment on 5 October.
