Recusal shock in taxi trial

2015-05-07 10:06
Lynette and Grant du Bois

Lynette and Grant du Bois

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“I HAVE no faith in the law any more.”

These were the despondent words of former Pietermaritzburg man Grant du Bois yesterday after he learnt after final arguments were presented that the magistrate hearing the trial of a taxi driver charged with causing his wife’s death in 2007 had recused himself at the eleventh hour and ordered the trial to start afresh.

Du Bois will seek legal advice about his rights to get justice for his late wife.

On the other hand, Siyabonga Kunene, the attorney for the accused taxi driver — Sibongiseni Khuzwayo — said at court that he believed justice was served by the decision of (recently retired) magistrate Helgaard Fobian to recuse himself.

He said there were countless “irregularities” that occurred during the trial and to start again was in the best interests of both the defence and prosecution.

He said his client could not get a fair verdict.

“Somehow he [Fobian] had a change of heart,” he said, referring to the fact that Fobian previously refused an application by the defence to recuse himself on grounds of perceived bias, and also dismissed an application for Khuzwayo’s acquittal at the end of the state’s case.

The magistrate was swayed only during final arguments being presented by the defence and state yesterday that it was in the interests of justice for the trial to start afresh.

The case has been plagued by three different prosecutors having to take over the prosecution, the record of proceedings and charge sheet going missing, as well as the death of Khuzwayo’s previous attorney.

One CD, on which Grant du Bois’s testimony was recorded, went missing and has never been found.

Yesterday the court again could not find all the CDs on which the evidence in the trial was recorded.

Kunene submitted in argument that he has never had sight of a transcript of Du Bois’s evidence.

He stressed Du Bois was the state’s “main” witness, whose version was at odds with that of Khuzwayo.

Fobian thereafter interrupted and said he had personally reconstructed the evidence from his own notes, which he wrote out neatly and gave to the prosecutor.

Initially, prosecutor N. Bhengu said she too had not seen the notes, but thereafter discovered they were in the docket.

Kunene agreed that he had never asked for the notes. As a result he never saw them, nor did he have any notes that were taken by his predecessor who had died.

Kunene further told Fobian the defence remained concerned about his “handling” of the trial, saying at some point Fobian seemed to be “emotionally attached” to the case.

“However, we hope that you will allay our fears by looking at the evidence objectively,” he said.

Announcing his decision to recuse himself, Fobian said it was his only option given the problems with which the case was riddled.

A stunned Du Bois told The Witness he barely knew what to say.

“The whole Justice Department failed,” he said, questioning how court records could be lost.

“As far as I’m concerned, it [the CD] was stolen ... it can’t just go missing,” he said.

Du Bois, who now lives in Durban, told The Witness it took five years for Khuzwayo to come to court and plead to the charge of culpable homicide for causing Lynette du Bois’s death.

He said he and his wife were en route to fetch their son from a friend’s house when the fatal collision took place.

He alleged a minibus drove through a red robot at the West/Langalibalele (Longmarket) streets intersection, “squashing” their car against a pole.

“We were taken right across the road to the next robot pole and smashed up against the pole. It took the fire department around an hour to get us out,” he said.

Lynette was crushed and died of multiple injuries

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