Kessie Nair's lawyers want magistrate recused for saying he 'didn't appear remorseful'

2018-11-08 15:22
Kessie Nair. (Mxolisi Mngadi, News24)

Kessie Nair. (Mxolisi Mngadi, News24)

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Kessie Nair's defence team wants the magistrate who denied him bail to recuse herself because she found that Nair "did not appear to be remorseful" during her judgment in his bail application.

Nair's lawyer, Kerusha Ariyan, told the Verulam Family Court on Thursday that they were not pleased that Magistrate Ncumisa Gcolotela had said she was unhappy with Nair's conduct during the bail application.

Nair, a former Durban councillor and convicted fraudster, is charged with multiple counts of crimen injuria and two of incitement of public violence after he posted a video on Facebook calling President Cyril Ramaphosa the k-word.

"The magistrate has found him [Nair] guilty before the trial," said Ariyan.

READ: Kessie Nair to appear in court for hurling k-word at Ramaphosa

Ariyan submitted that the second grounds for their application was that Gcolotela referred the conduct of Chris Gounden, who is Nair's main attorney, to the KwaZulu-Natal Law Society.

Ariyan works with Gounden.

"The accused feels that the magistrate has found negatively against his lawyer as well," said Ariyan.

No 'bias or malice'

Prosecutor Carlson Govender said the State was against the recusal because Gcolotela "was entitled to make such findings".

He said the State did not "draw any negative inference" from Gcolotela's judgment.

"With regard to the conduct of the attorney, the magistrate only referred the matter for investigation. The magistrate did not make a finding, it's up to the law society to make a finding," he submitted.

He said the court had never shown "bias and malice" toward Nair as it had allowed the defence to bring numerous applications before it.

"There was another application for recusal of Magistrate [Irfaan] Khalil. It seems like the defence has a habit of bringing recusal applications. Maybe on the next occasion they'll ask me to recuse myself," Govender submitted.

Gcolotela had ruled that Nair had "failed dismally" to prove to the court that he deserved to be released on bail.

Case postponed

Gcolotela said she was concerned because Nair did not appear to be aware of the seriousness of the "derogatory term he uttered".

She also ordered that the transcripts of the court proceedings be sent to the KwaZulu-Natal Law Society in order for it to investigate Gounden's conduct with regards to Nair's affidavit during his bail application.

Gcolotela had previously ruled that Nair must be sent for mental observation at Fort Napier Hospital in Pietermaritzburg.

Nair previously accused officials dealing with his case of trying to please Ramaphosa in order to get promotions.

Gcolotela postponed the matter to November 21 for judgment in her recusal application and for Nair's new bail application "based on news facts".

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