Durban - In a surprise twist in the murder trial of former policeman Brian Treasurer and his co-accused, Mfaniseni Nxumalo, Judge Fikile Mokgoloa recused herself and the prosecutor from the case after an application by Treasurer’s advocate.
Advocate Pradeep Bahadur made the application for prosecutor Sandesh Sanker to be recused in the Pietermaritzburg High Court on Monday on the grounds that Treasurer believed he would not be impartial.
Treasurer has alleged that Sanker “consulted” him while he was in police custody awaiting his bail application.
He claims Sanker and the investigating officer in the case “unduly influenced him into making a confession so that he may be released on bail” and would thereafter be used as a State witness against his alleged accomplices.
Arguing for Sanker’s recusal on Monday, Bahadur said if Sanker introduced the alleged confession at the trial, he would oppose the statement’s admissibility, which would result in a trial within a trial.
Bahadur claims that if this is the case, Sanker is likely to be called as a State witness.
“The administration of justice would be brought into disrepute if the prosecutor is allowed to prosecute a case and… at the same time give evidence against the same accused he is prosecuting,” Bahadur said.
Sanker, who admitted that “communication” took place between him and Treasurer, opposed the application to have him recused, and argued that there was no prejudice against Treasurer if he continued to prosecute the case.
Sanker said if he was called to testify as a witness to determine the admissibility of the alleged confession, a colleague from his office would take over that portion of the trial for him, and it would have no impact on the fairness of the trial.
However, after having heard Bahadur’s and Sanker’s arguments, Judge Mokgoloa concluded that it was in the interests of justice that Sanker be recused from the case. The judge also ruled that she had been compromised by presiding over the application for Sanker’s recusal, and thus she recused herself from the trial.
This has resulted in a massive delay as a new prosecutor will have to be briefed and take over from Sanker, and a new judge will have to be allocated to preside over the trial. The trial has been adjourned to February 16 next year.
Treasurer and Nxumalo are charged with the murder of Dr Bhavish Sewram, 33, who was shot outside his Chota Motala Road surgery in May last year.
The trial of a third accused, Rajiv Soni, begins in March 2015 and has been separated from that of Treasurer and Nxumalo.. A fourth accused, Sabelo Dlamini, pleaded guilty to Sewram’s murder earlier this year, and confessed to being the trigger man. He was sentenced to 25 years in jail.
The State alleges that Soni hired Treasurer, who hired Nxumalo and Dlamini, to kill Sewram. The motive, the State alleges, was Soni’s discovery that Sewram had been having an affair with his wife.
In his plea, Dlamini implicated Nxumalo and Treasurer. He said that on May 12 last year, Nxumalo told him he wanted the doctor dead for refusing to pay him for cutting his grass. Dlamini said Treasurer transported him to Sewram’s surgery, gave him the gun and paid him R12 000 afterwards.
Daily News