Judge raises safety concerns after man gains access to magistrate

The Western Cape High Court has sounded the alarm on the safety of presiding officers at the Mitchells Plain Magistrate’s Court after the father of a murder accused cornered a magistrate.

Judge Constance Nziweni set aside a Cape Town magistrate’s recusal in a case brought by the regional court president.

This came after the magistrate recused herself in an ongoing murder trial involving two accused: Garth Lamb and David Tamalkies.

Tamalkies’ father, who once worked in the same court, had seemingly tried to sway the magistrate in his son’s favour.

‘Unfortunate event’

Following a witness’ testimony in September, the trial court heard from the magistrate the next day about how she was approached by a man in the parking garage.

“On getting out of the courtroom, on my way to my vehicle, an unfortunate event took place. Having exited the door towards my vehicle, I was approached by a gentleman from behind.

“He appeared to be one of the members of the public that was in court, he looked familiar,” she said.

After they exchanged pleasantries, the man told her that he used to work as a senior police officer in the same court.

He told her that he was Mr Tamalkies, the father of one of the two accused in the murder trial.

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She said she decided to end the conversation before it could go any further.

“Imagine an observer seeing us talking, let alone the deceased relatives who would have wondered as to what was happening between us.”

The defence for the alleged murderers had no concerns about the incident.

They told her they had confidence in her ability to maintain impartiality in the trial, and she should not recuse herself.

But the prosecutor named Ms. Adams disagreed, demanding to hear the deceased family’s input before the trial could continue.

When the magistrate ruled against Adams, she requested her to recuse herself, which the magistrate did swiftly.

The State then approached the high court to make a ruling on the stand-off with the defence.

‘No bias’

Nziweni said it would be “absolutely untenable” for a presiding officer to recuse themself at any time and for any reason.

“The wheels of justice would be brought to a grinding halt, and this can be very costly for the parties. 

“In the circumstances, it cannot realistically be held that the magistrate was correct in recusing herself from the matter,” said Nziweni.

Noting that the magistrate did not forward an application to recuse herself, the judge said there was no bias nor impartiality from her.

“From what was placed on record by the magistrate, there is absolutely nothing that occurred between her and the gentleman that suggests, because of the encounter, that she is no longer impartial.”

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The magistrate, said Nziweni, found herself in a “very difficult position” not created by her and was open with the court regarding the parking lot encounter.

Presiding officers’ safety in question

Nziweni condemned the “easy access” to the magistrate when she headed out to her vehicle.

“I would be remiss if I did not mention that what happened here suggests a serious breach of security. An unauthorised member of the public was able to easily access a magistrate.

“One can only imagine the risks associated with such a breach, which is an unnecessary delay in the administration of justice.

“Such reckless breaches of security should always be avoided by court management. The Mitchells Plain court management should take corrective measures to address this particular security breach,” the judge said.

Nziweni directed that the magistrate return to court and finalise the trial.

She further requested copies of the judgment be sent to the regional court president and Mitchells Plain court manager.

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