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State urges magistrate not to recuse himself from bail hearing for 5 illegal mining bosses


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Six illegal kingpins during their court appearance in Carletonville.

PHOTO: Ntwaagae Seleka, News24

  • The state argued against the recusal of a magistrate before hearing bail requests from five illegal mining kingpins.
  • He stated that there were no grounds for removing the magistrate from the matter.
  • The defendant filed an application claiming that the court was biased.

A prosecutor has pleaded with a Carletonville magistrate not to recuse himself at the bail hearing for five alleged illegal mining kingpins.

The defendant took issue with the magistrate’s reference to “zama zamas” (illegal miners) being troublesome in Carletonville, Port Elizabeth and Mpumalanga.

Judge Howard Raath made the comment during Eric Dumisa Moyo’s bail application, which was denied last month at the Oberholzer Magistrate Court.

His five co-defendants, Bethuel Ngobeni, Nhlanhla Magwaca, Moseki Sechele, Thabo Sechele and Khudzai Mashaya, initially dropped their bail offers with only Moyo proceeding with his request.

READ | Five alleged kingpins of illegal mining seek the recusal of the bail hearing magistrate

After Moyo was denied bail, the five, in a radical twist, filed their own applications.

Addressing the court on Wednesday, the prosecutor, Tholoana Sekhonyana, said lawyers for the alleged kingpins presented similar facts separately when they asked Raath to recuse himself.

“During Moyo’s bail application, the State called Department of the Interior immigration officer Mothusi Letsogo. The officer only testified about Moyo as he was told to do so.

“It is illogical to say that the facts at Moyo’s bail hearing would affect the request of the other defendants. The State addressed the court saying that in 2018 it began a sting operation [all of] them to crimes”.

Sekhonyana claimed that there were no facts showing bias against the applicants.

“Moyo was also linked [to the offence] through video and audio. For the court to recuse itself, it must be perceived as biased. How can you determine the legal status of Moyo in the country and the delivery address? [described as] bias?

“His direction (of lawyers) was insubstantial. When I looked at the previous records, I didn’t see the word zama zamas. However, this court is dealing with issues involving zama zamas on a daily basis.

“There was nothing wrong with the court mentioning the word zama zamas. The court mentioned a court notice that the zamas zamas prevail in its jurisdiction.”

READ | One of 6 alleged illegal mining kingpins fraudulently obtained ID, court says

Sekhonyana argued that the hearing was different from one in which a magistrate heard a request for bail and then the trial against a person.

“For the court to recuse itself there must be a conflict of interest. In this case there is no bias or conflict of interest. The magistrate does not know the facts of the case beyond reading the statement of charges.

“The court also does not know how the five applicants are linked. The request should not be considered,” Sekhonyana said.

Ngobeni’s lawyer, F Mashele, said his request for a disqualification should not be seen as insulting or undermining the court.

Mashele said that when he denied Moyo bail, Raath said zama zamas were problematic in Carletonville, Port Elizabeth and Mpumalanga.

“…the fact that the court has made comments shows that the court is already biased towards them. They will never get a free and fair trial. The court is compromised and in a contentious position,” Mashele said.

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He added that such statements caused his client discomfort.

Other lawyers agreed with Mashele, accusing Raath of being biased and calling for his recusal.

The six men were arrested last month following an investigation by the Hawks, which began in 2018.

They were arrested in Khutsong and Carletonville.

During his arrest, 14 high-performance vehicles and one truck were seized.

READ | Mining graft: Alleged leader of illegal mining described as reserved, humble and affectionate towards others

Hawks spokesman Katlego Mogale said the men held levels 2 and 3 of the illegal mining syndicate.

“Level 2 and 3 buy precious metal-containing material from zama zamas, process it and sell it to level 4 and 5 members,” Mogale said.

The alleged drug lords face charges of fraud, possession of ammunition, possession of drugs, money laundering and violation of the Immigration Law and the Precious Metals Law.

Sentencing has been reserved until November 29.


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