“I understand the problem of the accused and I will grant a postponement until noon tomorrow (Thursday). I will then be proceeding with sentencing, with or without you”
SENTENCING procedures are set to finally get underway today for whistle-blower Ross Henderson and his co-accused in a trail that started 30 years ago.
The case against Henderson, together with his co-accused Itumeleng Moroka and Freddy Witbooi, relates to a stolen cheque from the North West University that was paid into the accounts of Witbooi and Moroka, who then deposited the money into Henderson’s account after they had loaned money from him in 1995.
Witbooi and Moroka were found guilty of theft, while Henderson was found guilty of negligence fraud involving an amount of R903 250 in 2005 by Kimberley Magistrate, Smit Odendaal du Plessis.
In an urgent high court application submitted on Tuesday this week, the accused have applied for an urgent court interdict from the Northern Cape High Court against Du Plessis, restraining him from presiding over the proceedings in their criminal case until such time that he receives a proper, valid and lawful appointment from the Minister of Justice.
In their application, the three (Henderson, Witbooi and Moroka) argue that Du Plessis was not properly appointed to be the presiding officer in their criminal trial, thereby violating their constitutional right to a fair trial.
They point out that Du Plessis was appointed as a Regional Court Magistrate at the time of the inception of their criminal proceedings. Du Plessis took early retirement in 2007 before the trail was finalised but he continued to preside over the criminal trial.
“He did so without any lawful appointment as required by law,” they argue in their application.
Although sentencing in the criminal trial was due to get underway yesterday, the accused’s legal representative requested that the sentencing procedures be postponed to allow him to prepare for the High Court application.
“We are expecting opposing papers that we have to reply to before 4pm today in terms of the High Court application,” their legal representative pointed out. “If sentencing proceeds today and we are unable to finalise the papers for the High Court application and there is a question from the Judge, we will have to say that we asked for a postponement (in order to prepare) and it was denied.”
Du Plessis said yesterday before postponing sentencing to today that, after stating on Tuesday that he would proceed with sentencing yesterday, he was again confronted with a request for postponement.
“I understand the problem of the accused and I will grant a postponement until noon tomorrow (Thursday). I will then be proceeding with sentencing, with or without you,” he warned.
During an application for a review in 2008, brought by the three accused to the Northern Cape HIgh Court, it was pointed out that recusal applications had been brought and dismissed on five separate occasions during the course of the trial.
“The three applicants had been arraigned and convicted on various counts of fraud and theft. The trail was presided over by the First Respondent (Du Plessis). The trail started in 1999 and has dragged on at a snail’s pace. It has been characterised by numerous postponements (mostly at the request of the defence).”
The application for review in 2008 was also dismissed by former Northern Cape High Court Judge Steven Madjiet.