The state on Tuesday requested the recusal of Magistrate Wynand Nel after he was seen speaking to the instructing attorney of private investigator Paul O’Sullivan, who faces charges of breaching the SA Citizenship Act.
During proceedings at the Kempton Park Magistrates’ Court, prosecutor Jabulani Mlotshwa submitted an affidavit written by the investigating officer which stated that he witnessed Nel having a conversation with O’Sullivan’s instructing attorney during a break.
The private investigator was arrested in April at OR Tambo International Airport as he was about to leave the country on an Irish passport. He was later released on R20 000 bail. O’Sullivan faces charges of violating section 26B of the Citizenship Act.
Mlotshwa told the court on Tuesday that O’Sullivan took a photograph of an officer, who was still under oath, speaking to the investigative officer to “show the court that they were talking”.
The prosecutor suggested O’Sullivan should have taken photographs of his own instructing attorney talking to the magistrate during a break.
At O’Sullivan’s previous court appearance, Nel granted the private investigator permission to travel to London to celebrate his daughter’s birthday.
Mlotshwa said Nel spoke to O’Sullivan’s instructing attorney before making his decision.
The state had opposed the move.
Mlotshwa said that it was “vital and fundamental” for the magistrate to be impartial in order to make a fair judgement.
The prosecutor said the magistrate must avoid any activities that may give the “perception that he is biased”.
However, Advocate Barry Roux, who is representing O’Sullivan, said: “The investigating officer informed the state that before the bail conditions were relaxed to allow him (O’Sullivan) to travel to London, the magistrate was seen having a conversation with O’Sullivan’s attorney on 5 July”.
Roux explained that the conversation was “in connection with discussing whether there was an interpreter and that was the next day before the bail application was mentioned”.
Roux said here was no merit in the request for the recusal of the magistrate and the trial must go on.
Nel reserved judgement until Friday on the state’s request for him to recuse himself.
– African News Agency (ANA)