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By JOHN SUKATI | 2024-02-14
Industrial Court Judge, Muzikayise Motsa, has recused himself from hearing the medical drugs and procurement case, citing threats to his safety and his family.
The judge yesterday said when his personal safety and the security and safety of his family and children, who he endears so much was now threatened, just because he presided over a particular matter, it was no longer worth it.
He also cited persuasive misinterpretation of the true facts in the application, saying these were obviously calculated to distort the correct version of events to create an eschewed public impression about the judicial officer.
The judge said those responsible for this must hang their heads in shame.
This is in the case where government applied for the judge to recuse himself from presiding over the matter where Principal Procurement officer in the Ministry of Health, Sincedzile Dlamini-Magwaza, and Deputy Director –Pharmaceutical Services Fortunate Bhembe, took government to court in a bid to stop the forensic investigation into the issue of procurement of medical drugs.
The investigation involved Nikilitha Consultancy and Funduzi Forensic Services (Pty) Ltd.
Ministry of Health Principal Secretary, Khanyakwezwe Mabuza, in his application calling for the judicial officer to recuse himself, alleged that Judge Motsa was not regulating the proceedings in a fair manner.
Mabuza alleged that the judge proceeded to adjudicate the matter and made orders and rulings that were always tellingly in favour of Magwazwa and Bhembe.
He also submitted, in the application, that it was not unreasonable to conclude that the judge was willing to hear the matter even if it took clothing himself with jurisdiction, which he might not have.
However, Dlamini-Magwaza and Bhembe responded, arguing that Mabuza’s submissions were replete with hearsay, had nothing tangible or reliable in the form of evidence on oath to call for the recusal of the judge.
When the matter appeared before court yesterday, Judge Motsa expanded on his reasons not to continue hearing the matter saying he was not married to it (matter).
He said he was only exercising his judicial function in presiding over it.
“I am least worried about the purposive and pervasive misinterpretation of the facts as contained in the application, because I note the correct and obtaining position in this matter,” said the judge.
Motsa went on to say that the allegations contained in the application alone would not have done anything to impair his objectivity and impartiality in this matter.
“But when my personal security and the safety and security of my family, and my children, who I endear so much is now threatened, just because I presided over a particular matter - it is no longer worth it,” he said.
The judge said owing to a host of intimidation and other incidents, which he has had to endure since the article on this recusal application was published in the local media, his objectivity and impartiality in the matter had been immensely impaired – hence his decision to recuse himself from it to enable justice to prevail.
Judge Motsa had previously refused to recuse himself.
Dlamini-Magwaza and Bhembe submitted in their court papers, opposing government’s application for the judge to step aside in the matter, recalled that on November 27, 2023 the judge had declined to step aside.
They averred that in keeping with the salutary practice for recusal application, government’s attorneys, at the judge’s chamber, an application was opposed and ultimately the judge declined to recuse himself.
It is said the court then directed that a substantive recusal application would have to be instituted and that a government attorney was invited to propose dates as to when he would be able to institute and serve the recusal application.
The government attorney proposed December 11, 2023.
It was brought to the attention of the court by the duo that the recusal was eventually served to their attorneys on January 30 and it was unclear as to when was it issued out of the court.
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