Good dayI have a friend who cannot affor...

Asked by Anonymous on 03-05-2021 10:50:53
Question posted in the Criminal Law category relating to Western Cape

Good day

I have a friend who cannot afford legal counsel. He is representing himself in cases brought against a neighbours (alleged harrassment and alleged assault) and another group seeking a protection order. A;; of this takes place in Lambert's Bay

In either case, the applicants have not laid criminal charges but are seeking remedy by way of court interdicts/petitions. 

As I do not have all the details, I can only provide a summary as provided by my friend. Admittedly, this is a right mess.

The initital magistrate was changed for reasons unknown to me to be able to advise you here. The initial magistrate was hearing the cases together as the applicants in the protection order case names an applicant in the assault/harassment case (or vice versa). As with the previous magistrate, the new magistrate in both cases is the same. The new magistrate happens to be the Judicial Head of the Clanwilliam court - so no complaints can be laid against him either. My friend tried this route and found to this out by way of response from the magistrate.

In the case of the group (restaurant owners) seeking a protection order, their patron confronted/assaulted my friend - the police was provided the patron's license registration but claim they cannot find the patron. Again, this is integral to the applicants claims for protection. A temporary interdict has been granted against my friend. The applicants do not attend court - one had a broken leg and they kept using this as an excuse not to attend, however the magistrate did agree that as there is more than one applicant, the other's are able to, however, the matter keeps being postponed for a month at a time. As he has ruled that he will hear the cases separately, this one will go on until such time as the other is resolved.

My friend works in tourism. The temporary interdict prohibits him from entering a specific part of town - the harbour (which is paid access) which the applicant has his place of business (the applicant merely rents the premises, does not own it) The magistrate ruled in a previous appearance that he could access the area due to the fact that it is public property, the applicant does not own it and it hampers his business. In the most recent appearance, the magistrate changed this to prohibit him from access the area again. Whilst my friend wants nothing to do with the applicants or go near them (within reason of course), he wants to be able to move freely and show his guests around the town etc.

In the case of the alleged assault/harassment, my friends neighbour has alleged that he assaulted her and has one of her husbands employees who allegedly witnessed the event. No details as to when this alleged assault took place have been provided as yet. Further to that, a neighbour informed my friend that the applicant has been approaching neighbours to sign a petition claiming that he harasses them. According to the neighbour, the applicant has amassed 600+ signatures to date. My friend naturally has concerns that he will not be afforded an opportunity to question the petitioners as he fears the magistrate may not permit this.

My friend and the neighbours both run accommodation businesses. The neighbour reported him to the Municipality, who shut him down for a month only to delcare his business, premises etc all in order and that he could re-open his business. The Municipality told my friend that the neighbour and his lawyer went in person to the Municipality to demand that he be shut down. 

My friend wants to submit a recusal application as the magistrate as he believes the magistrate is being biased based on the following reasons:

1. The magistrate has on more than one occasion told my friend to get a lawyer to lift the temporary interdict,

2. Has told him he will have to live with the fact that he may not get incidents reports from the police (despite a court order and which incidents reports is integral to his defence argument and without them prejudices his right to a fair trial)

3. Refusal to accept some of his evidence.

4. The last appearance in March, the applicants in the protection order did not attend court. and the magistrate merely indicated that he was taking a "suggestion" from what appears to be a discussion that took place in private between the applicants lawyer and himself. Nothing was entered on record and no explanation was provided to my friend. 

5. He refers to a civil matter with family my friend has in the above court appearances - which has no bearing on either of these cases. The fact that he has knowledge about it and even discusses it openly in court raises questions about his impartiality 

My question is, are the above points sufficient/relevant in requesting the magistrates recusal?

If so, any advice on how to prepare the recusal application would also be greatly appreciated.

Thank you for your consideration.

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