In a blistering exchange, Free State High Court deputy judge president Nobulawo Mbhele delivered a scathing rebuke of the Director of Public Prosecutions (DPP) for what she termed an unprecedented attack on the judiciary’s independence.
Earlier a letter by DPP Advocate Navilla Somaru had been delivered, by hand to the court.
In the resulting heated exchange, Mbhele was uncompromising.
Judge shoots down special treatment expectation
“The NPA is just another litigant,” Mbhele declared, shooting down any expectation of special treatment by the prosecutors. She was adamant the National Prosecuting Authority (NPA) must follow the same rules as everyone else.
This exchange occurred in a case involving former Free State premier and ex-ANC secretary general Ace Magashule, known as the Asbestos Case.
The matter has been on the court roll since August 2021, with pre-trial appearances stretching over time.
The charges involve numerous counts of fraud, corruption, and money laundering against Ace Magashule and others. The case is linked to an alleged irregular procurement that reportedly syphoned R230 million from the Free State government.
However, Mbhele made it clear that the time for voicing grievances had long since passed.
NPA scolded for declaring it is ready for trial while wanting an assessor to be appointed
“When the matter was certified trial-ready, the state claimed readiness,” she reminded the NPA, highlighting the sudden change of heart regarding the need for assessors.
Mbhele didn’t stop there. She slammed Somaru’s insinuation about the entire Free State High Court Bench.
“Incompetent, contaminated, disqualified?” she questioned, her words dripping incredulity and disdain.
Accusation insulting, derogatory and libellous
She charged that the accusations were not only unfounded but, “insulting, derogatory, and libellous”.
The bench, she noted, had previously ruled in favour of the state in many interlocutory applications. Yet Somaru’s “unsubstantiated allegations painted the judges as lacking necessary expertise”, a notion she described as absurd.
Mbhele called out what she deemed Somaru’s covert attempt to get the entire Free State Bench to recuse itself.
“This procedure is unheard of,” she stated, underscoring the irregularity and novelty of such an application.
FS head of NPA fears serving or local judge may be impartial
The suggestion that only a retired judge or one from outside the division could ensure impartiality was, in her view, “blatant interference with judicial independence”.
Somaru had raised concerns about the safety of judges, a point Mbhele swiftly rebuffed.
“Judges are able to provide for their own security,” she shot back, dismissing the notion that the NPA could assume such a role.
The timing of the demand for the disclosure of the trial judge’s identity also drew criticism.
“Would this not make the judge a target?” she questioned, exposing the flaw in Somaru’s logic.
Letter was leaked to the media
And to add fuel to the fire, Mbhele revealed that Somaru’s letter had been leaked to the media before reaching the judicial head.
She said this breach of trust has left a significant stain on the relationship between the judiciary and the DPP in the Free State.
Mbhele made her stance clear: “You cannot be a litigant and the JP’s [judge president] adviser at the same time.”
Her words, a stark reminder that the separation of judicial and prosecutorial duties is sacrosanct.
The case is complex, NPA tells court
In the letter to Judge President Cagney Musi, dated December 10, Somaru had outlined the complexities of this high-profile criminal case. Somaru proposed the appointment of an assessor with forensic accounting expertise to aid the presiding judge, given the trial’s technical nature and extensive evidence.
She also suggested the appointment of a judge from outside the province to ensure impartiality and the security of the president officer.
She insinuated there was a security threat against the prosecution without giving details.
This move, Somaru argued, would expedite proceedings while safeguarding the constitutional rights of the accused.
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