Magistrate accused of being biased
Mdingi had pleaded not guilty to rape charges on March 17.
The National Prosecuting Authority (NPA) has filed an application for the recusal of Magistrate Wiseman Nzama who is presiding over the case of Michael Mdingi, the doctor who allegedly raped a 20-year-old woman in the Port Shepstone Regional Hospital in August 2022.
Mdingi had pleaded not guilty to the rape charges on March 17.
The case is being heard in the Port Shepstone Magistrate’s Court.
In 2022, Saps provincial police spokesperson Constable Thenjiswa Ngcobo said it was alleged that the woman was being examined by Mdingi when she was allegedly raped.
The NPA’s prosecutor Princess Thabsile Mokoatle told the court recently that Magistrate Nzama took over the cross-examination and showed signs of hostility towards witnesses.
Mokoatle said Nzama’s questions were intended to discredit the witnesses, adding that the nature and the manner of the questions were orchestrated to benefit the accused.
“When the presiding officer questioned state witnesses, they were subjected to lengthy questions that worked in favour of the accused. When the victim was asked about the bed where the incident allegedly happened, the court was selective when considering what the victim had to say. The court also intended to mislead the witness when asked about the number of times she was penetrated. The court’s interjection was to accuse the complainant of using ambiguous words thereby creating a problem for the victim,” she said.
Mokoatle added that the application for recusal should be approached in a professional manner, saying that the presiding officer should not be overly sensitive or take the application personally.
She said the state has a reasonable fear that proper judgment will not be given due to biases.
Mdingi’s lawyer, Kwenza Ndlovu opposed the application saying that the questions asked by the magistrate were needed to provide clarity to the court.
Meanwhile, Magistrate Nzama said the state had no problem with how he interviewed the first five witnesses and the clarification questions.
He said presiding officers have a right to recall or re-examine any witnesses or accused if the evidence appears to be essential to the case.
“In the case of examinations, there were three examinations referred to the case, one of a dog bite, ear infection and vaginal discharge The witness said she consented only one examination – of her vagina but records show that there were three examinations conducted- which is why the court needed clarity. The state wants the case heard by another judicial officer who is likely to decide the case in its favour. Judges do not choose their cases and litigants do not choose their judges therefore the application for the recusal should not prevail unless it is based on substantial grounds,” said Nzama.
The doctor who is on trail will return to court on October 5.
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