Judge rejects 'late' recusal application in accused husband killer case

Ruling on the interlocutory application for his recusal in the case against accused husband killer, Zurenah Smit and her co-accused Derek Sait, Western Cape High Court Judge Derek Wille found they had failed to demonstrate a violation of any of their fair trial rights in accordance with section 35 of the Constitution.

Judge Wille on Thursday refused the application on a number of grounds, including that the application was piloted at a very late stage. 

During proceedings, Judge Wille said the “subjective anxiety” of Smit regarding the number of rulings and an order in terms of a failed section 174 application which was not in her favour, are not grounds for recusal. 

His order further read: “The refusal of the section 174 discharge application does not constitute a valid ground for the recusal of a judicial officer. If the recusal application were to be granted, it would hinder, rather than aid, the proper administration of justice.”

Thursday morning, Smit’s counsel, Susan Kuun, read their arguments into the record, which was supported by co-accused Sait. 

Smit, in her affidavit, noted that during the trial in which she faces 13 criminal charges and a possibility of life time imprisonment if found guilty, submitted she was biased by Judge Wille who - among a number of reasons raised in her submissions - made credibility findings of the investigation officer who “did a very good job with the investigation”.

According to Smit, Judge Wille by way of saying that, made a credibility finding of the investigation officer. Judge Wille rebutted that his comment was not a credibility finding but rather a comment relating to the investigation work done. 

In her submissions, Smit referring to the recent section 174 application which failed in the same court and was dismissed by Judge Wille, submitted that the judge created an impression of bias against her.

“In fact, his findings directly impact on my credibility and character even before the defence case has commenced. In his judgment, he held that the defence is attempting to impermissibly persuade a judicial officer to embark on premature credibility findings regarding the evidence presented by the prosecutor and/or the defence is impermissibly attempting to gain a window into the judicial thought process of the judicial officer so that an accused person may tailor his or her defence case as the case against them advances. 

“In his footnote, he stated unequivocally that this is precisely what the defence is to gain insight into prosecutions strengths and weaknesses are not a game of 'catch as catch' can. His remark and finding creates an apprehension of bias,” Smit submitted.

According to Smit, by referring to a possible appeal before the defence has commenced their case created an impression that Judge Wille “has already decided on my guilt and this shows bias”. 

Midway during proceedings, before the State submitted their arguments, Sait’s counsel, Christa Verster, brought their own application for recusal which was summarily dismissed by Judge Wille.

He dismissed the filing of the application on grounds that the matter was already argued and that it was brought “too late”.

Verster was given an opportunity to address the court on legal principles and the conclusion of Smit’s affidavit before she brought her separate application and earlier in proceedings submitted that her client should not be prejudiced due to “her mistake” for not filing their own application for recusal.

In opposing the “tactical and feeble attempt” application, state prosecutor, Renee Uys, said the State is at “its wits' end” as to when the matter would progress.

Uys also said the timing of the recusal application was questionable and described the application as “tantamount to an abuse of process”. 

The matter continues on November 17. 

Cape Times