Judge recusal bid fails

2017-06-20 13:45
 MEC for Health Sibongiseni Dhlomo.

MEC for Health Sibongiseni Dhlomo. (File)

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A high court judge on Monday dismissed an application by KwaZulu-Natal’s Health MEC for him to remove himself from an R11,8 million medico-legal trial based on allegations that he was biased.

Judge Jerome Mnguni on Monday threw out the Health Department’s application for his recusal and also hit the department with a punitive cost order.

He will give reasons for his ruling during the main trial.

This is the second punitive cost order Judge Mnguni has awarded in the case against the Health Department.

The first was when the case was adjourned last May at the department’s request so they could obtain a transcript prior to making a formal application for the judge’s recusal.

It is one of the issues the department raised in court papers and oral argument on Monday as indicating that the judge was “inclined” in favour of the former patient suing them.

The department’s advocate, Sash Nankan, SC, confirmed yesterday that the department instructed him to note an application for leave to appeal the ruling. The case revolves around a claim for damages by S’lindile Lillian Mthembu for her daughter, Andile Penny Mthembu, who was born severely mentally and physically handicapped on November 17, 2000 at Addington Hospital.

Mthembu, represented by Friedman and Associates, is suing the department for the alleged negligence of staff at Phoenix Clinic and Addington over allegations including that although she was diagnosed as needing an immediate caesarian-section delivery she did not undergo it immediately because the hospital theatres were full.

The Health Department says because Mthembu’s claim was only lodged in March 2014 — 13 years later — all hospital records except for the “Road to Health Chart” have been lost.

This made it imperative for their advocate to “adequately” cross examine Mthembu to establish if she was truthful and had a valid claim, they said.

The department alleged that Judge Mnguni had “interrupted” the cross examination of her and indicated that he believed the questions put to Mthembu were irrelevant.

In his affidavit, the director for legal services for the department, Stuart Chambers, said in his view the questions were “pertinent” to the issues.

He alleged that when she was testifying Mthembu became emotional and started crying and he believes this influenced Judge Mnguni to be sympathetic to her.

“This is a perception created in my mind in view of the fact that during cross examination the honourable judge was seen by me regularly shaking his head from side to side to the questions posed by the applicant’s legal representatives notwithstanding that such questions were in my view relevant and pertinent,” he said.

Chambers said the judge appeared “irritated” on various occasions and said he formed the view that he wanted to curtail the department’s cross examination by asking the advocate for example “if he thinks the case will ever finish”.

He added it was reported to him that during a discussion with the lawyers in chambers the judge had expressed certain views of the case and also suggested the department was “on a fishing expedition”.

Chambers said this made him feel the judge was biased in favour of the other side.

Chambers also alleged he had felt “threatened and intimidated” by Judge Mnguni because after the department’s advocate informed the judge that he had been instructed to apply for his recusal the judge demanded to know the identity of the person instructing him.

“I was identified and my details were provided to [the judge] on his specific request. I underscore that I felt gravely threatened by the sentiments expressed by the honourable judge, which were expressed in an aggressive fashion and certainly intimidated me,” he said.

In court on Mondday Mthembu’s advocate Vinay Gajoo, SC, argued that the application by the department was “frivolous, malicious and contrived”.

He said the department had an ulterior motive for applying for the judge’s recusal.

“The department wanted an adjournment from the beginning and used every tactic available. When it failed to get it, it [the department] behaved like a naughty child,” he said yesterday.

He said there were no grounds to find that Judge Mnguni was biased.

Gajoo said it was ridiculous to suggest that the judge would be influenced by a woman crying while giving evidence in court. “This is understandable. These were traumatic events that happened to her,” he said.

Gajoo added during his argument that in his career spanning 37 years he had not ever had to deal with an application for a judge to recuse himself based on alleged bias.

Read more on:    health department

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