Why NPA wants magistrate off Mboro case

Inviting Paseka "Pastor Mboro" Motsoeneng's defense team to her chambers in the absence of the state, allegedly informing them to “go and fix" the poorly constructed affidavit before bringing an application on new facts and enrolling the case without the required documentation.

These are some of the reasons the National Prosecuting Authority (NPA) wants magistrate Katlego Mokoena to recuse herself from the case, saying it has reasonable apprehension that she might not bring an unbiased mind when presiding of over matter.

The NPA said some of the documents needed to enroll the matter on September 2 were "a proper requisition that would have allowed her to entertain them and failed to probe why the applicants were before her with a new counsel and not the counsel on record".

The state brought an application on Monday for Mokoena to recuse herself during the urgent bail application on new facts by Motsoeneng.

This was Motsoeneng's second bail bid after it was initially denied.

According to the NPA,  Mokoena has made some "worrisome" comments and also accused the prosecutor of being "hard" towards the clergyman who faces multiple charges that include kidnapping, possession of dangerous weapons and assault.

Gauteng spokesperson for the NPA, Phindi Mjonondwane, said: “What we are alleging as the state is that we have reasonable apprehension that the presiding officer will not bring an impartial mind in adjudicating the case.

“We have cited our facts before court, we have mentioned the remarks made by the judicial officer to the prosecutor, we deem it as an inappropriate behaviour."

Taking the stand at Palm Ridge magistrate's court on Monday, the prosecutor – Adv Pheello Vilakazi – accused Mokoena of "questionable" conduct.

Vilakazi testified that Mokoena had  called the defence to her chambers without calling the prosecution as it is standard procedure. He also accused her of asking him why he was so "hard" on Motsoeneng.

"After the applicant (Motsoeneng) was denied baiI, she said I must tell the legal team for Mr Motsoeneng to see her in her chambers.

"He then approached the bench while I was packing my belongings. I heard her tell the applicant's legal team that their application for bail was very poor, [and that] they must just fix their papers and bring back the application again," he said.

When asked by the Palm Ridge magistrate's court senior public prosecutor Adv Kenny Ramavhoya if he was also invited to the meeting in her chambers, he sad he was not invited.

"No, the magistrate did not invite me to her chambers. I packed my belongings and went to my office. Later, I met the legal representative and asked if they met with the magistrate. I can't remember what he said, so I'm not sure if they met or not, but he did say there has been a dialogue with the magistrate," he said.

Vilakazi said he later met Mokoena along the corridor. "She asked me why I was so hard on Mboro. I found her comments worrisome." 

However, the defence said they were happy with the magistrate. Adv Phillip Dlamini accused the state of delaying tactics and wasting the applicant's time. "What would you say if I put it to you that this whole issue is to try and deny the applicant bail and waste their time?" he asked, to which Vilakazi responded: "I would say that is your view, it's your subjective view."

According to Mjonondwane, instead of remarking to the prosecutor that ‘you were harsh towards the applicant’, Mokoena had a duty to bring that before court in formal proceedings if she felt that the prosecutor had been unfair to Motsoeneng.

The case was postponed to Wednesday for Mokoena to give a ruling on whether she will recuse herself or not.

Motsoeneng, a relative and bodyguard Clement Baloyi face multiple charges that include kidnapping, possession of dangerous weapons and assault.

The charges stem from an incident at Matshidiso Primary School in Katlehong, on the East Rand, which was captured on video and went viral on social media.

In the video, Motsoeneng is seen wielding pangas alongside a gunman at the school, while two children cry hysterically.

Motsoeneng later explained that he went to the school to help his son, who was being prevented from leaving with his two children. According to Motsoeneng, the children's maternal grandmother, who works at the school, allegedly stopped the father from picking them up.

There have been feuds between the children's maternal and paternal families since their mother, who was married to Motsoeneng's son, died.

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