Hendrick Mphande

Claims of bias, racism and discrimination arose yesterday when a black magistrate was asked to recuse himself from presiding over a matter in which a white magistrate called a worker a baboon.

On September 16 Port Elizabeth magistrate Johan Rutgert Herselman was found guilty of using hate speech when he referred to Khayalethu Eric Geleba as a baboon.

Geleba was employed by public works as a cleaner at North End Court at the time of the incident in January 2006.

Lufuno Mmbadi of the Human Rights Commission appeared for Geleba.

The evidence was that Geleba and a colleague, identified only as Swartbooi, were moving a table in an office when it accidentally scraped against a door.

This prompted Herselman to liken Geleba to a baboon. The tirade was aimed only at Geleba, who was working with a coloured colleague.

Herselman admitted using the word baboon once, saying he had merely intended to tell Geleba to refrain from acting like a baboon. The court found Herselman had intentionally used the word in a derogatory way more than once. He was convicted of hate speech.

Bloemfontein chief magistrate Mziwonke Hinxa presided over the case.

The matter was on the roll yesterday to address the two parties relating to damages and apology. But when the case was called, Advocate Albert Beyleveldt, instructed by Danie Oelofse, brought an application to have Hinxa recused because of perceived bias.

In the affidavit handed to the court Herselman argued that Hinxa had erred in his analysis of the evidence.

"Some of the findings of the magistrate are so unreasonable they must have arisen from bias," Herselman said, "or should at least have given rise to a reasonable apprehension of bias."

His affidavit said that Hinxa was in a dispute with a white magistrate in Bloemfontein.

The application will be heard in January.