Magistrate in O'Sullivan trial asked to recuse himself

Johannesburg - Instead of calling the final witness to the stand in the trial against forensic investigator Paul O’Sullivan on Tuesday, the State asked Kempton Park Magistrate Wynand Nel to recuse himself.

Last month, O’Sullivan spent three days in court after being charged with six counts of contravening Section 26B of the Citizenship Act, after he exited the country using his Irish passport. He pleaded not guilty to the charges.

The State indicated at the time that it had one witness left to call to the stand, but the person had called in sick. Instead, O’Sullivan asked that his bail conditions be altered in order for him to fly to London to be at his daughter’s birthday party.

The trial was postponed to Tuesday, where the State was expected to wrap up their case.

Instead, prosecutor Jabulani Mlotshwa brought the recusal application. Mlotshwa said that when Nel granted O’Sullivan’s bail condition application, allowing him to fly out the country, the State had reservations about the decision.

The prosecutor said that, during his judgment on the application, Nel had said that O’Sullivan appeared to be concerned about the political state of the country.

"This was a finding of fact. It was not an issue in the application. Yet, the court seemed to make this finding based on what the defence has put before the court. How could the court make this finding when the accused has not yet given his version to the court?" Mlotshwa asked.

The prosecutor read out an affidavit by investigating officer Captain Bonisile Mkupa. He claimed to have seen O’Sullivan’s instructing attorney, Daryl Furman, in conversation with Nel in the passage, without the State being present. He said this had taken place before the bail application, while the court had stood down for a short while.

"I find it improper and irregular," said the officer in the affidavit.

The prosecutor said, even if the conversation had been innocent, Nel should have told Furman not to talk to him.

"If it did not happen, you have to deny it, making you a witness in the matter, which is undesirable," said Mlotshwa, adding that Nel needed to be seen as impartial.

'This is all nonsense'

Defence attorney Barry Roux said that, in his 35 years before the court, he had never heard of such a weak recusal application.

Roux said he had listened to the recording of the bail judgment that morning, after learning the recusal application would take place.

He quoted Nel as saying: "I am not going to venture in to this, but the email seems to say..." Nel was referring to an email O’Sullivan sent to police, indicating he would hold a press conference in London to discuss corruption in the country. This was before his arrest in April

This showed Nel was not making a statement of fact about the case, Roux said.

He said the alleged conversation between Nel and Furman did not take place before the bail application, but rather the previous day when they were waiting for an interpreter for one of the witnesses.

"You probably won’t even remember this, but Mr Furman bumped into your worship in the corridor and said, 'I am sorry your worship, we are still looking for an interpreter'," Roux said.

"This is all nonsense," Roux said of the application. "You did not make a finding. You did not have a discussion with the defence. There is no merit to this application."

He asked why, on such a basis, the whole trial should start afresh, with all the cost and time so far being for nothing.

Nel said he would reserve judgment for Friday.

This article first appeared on News24.