Avinash Ramkistan's intimidation case: court denies recusal request

A DURBAN man who allegedly intimidated and threatened a judge, prosecutors, police and Shamila Batohi, the National Director of Public Prosecution,  with “death” and “bloodshed” after he had lost a court case, had his application for the presiding magistrate, prosecutor and investigating officer to be recused dismissed in the Durban Regional Court on Tuesday. 

Avinash Ramkistan, 39, of Durban North, was arrested and charged with several counts of intimidation, crimen injuria, contravention of the National Prosecuting Authority (NPA) Act and contravention of the Cybercrimes Act in April last year.  

He further requested that the matter be transferred to another court jurisdiction. 

During his bail application last year, the investigating officer, Detective Warrant Officer Sivan Naidoo of the Hawks led evidence that the threats stemmed from a civil matter after the Financial Sector Conduct Authority disbarred Ramkistan, who had worked in the insurance industry, for a period of 10 years because his underwriters were liquidated.

He said Ramkistan then proceeded with civil action in the Durban High Court against the authority and Standard Bank.

Naidoo said that the acting judge presiding over the case dismissed the matter against the authority and the bank with costs.

He said instead of Ramkistan taking the decision on review, he opened a fraud and corruption case against the acting judge.

Naidoo said in addition, Ramkistan started making verbal threats against the prosecutors and the previous investigating officers through emails and voice recordings.

As part of evidence of the threats and intimidation, the State played a voice recording where he could be heard making death threats towards a prosecutor. It is alleged that Ramkistan recorded the conversation and then posted it on his Facebook page.  

Ramkistan was denied bail. 

Ahead of the start of trial on Monday, Ramkistan, who is representing himself, brought a notice of motion requesting for the “transfer of matter and recusal of presiding magistrate, officials and Durban court”. 

He said that the trial proceedings and his bail appeal should be transferred to the Constitutional Court or any other court having jurisdiction over the matter in terms of section 35(1) of the Magistrate's Court Act, 32 of 1944 and section 55 of the Magistrates Court Act. 

In addition, Ramkistan said that the presiding magistrate together with the State prosecutor, Vaneshree Moodley and Naidoo should recuse themselves with immediate effect. 

Ramkistan, in his founding affidavit, said the seat of court wherefrom the proceedings were issued is Durban Magistrates Court in which he currently had criminal charges opened against officials in the Durban High Court and NPA. 

“This is a direct conflict of interest. It is for this reason that I ask for the recusal for the officials initiating my trial. Any further proceedings in the Durban Magistrates Court and Durban High Court will have a direct negative impact on my bail appeal and a fair trial.”

Ramkistan said the NPA officials and previous magistrates confirmed that they are well acquainted with the complainants and this would have a direct impact on fair proceedings.

He said the prosecutor and officials initiating the trial process, together with the investigating officer all have criminal charges levelled against them, and have now become suspects in the matter. 

He opened cases of kidnapping and attempted murder against Moodley and Naidoo, as well as several others including NPA officials and magistrates.  

“This was never denied by the prosecutor as well, yet prosecution still engages herself in proceedings that she has no mandate over given the fact that she is very well aware of the serious charges levelled against her.”

Ramkistan, in his affidavit further said that the court clerks confirmed in writing that the previous hearings were not recorded which has limited his access to justice, a right to a fair trial and it was a breach of his Constitutional rights.

“The State has denied me my right to discovery, which again, limits me access to justice in ensuring my rights are protected for a fair trial. Numerous attempts to have this provided to me were handed over to the State prosecutor who blatantly ignores and denies this right to me. This is an utter disregard and has tried on every occasion to silence me from exposing corruption.” 

Naidoo said the transcripts had not been provided to him to date. 

“After I had requested this on numerous occasions, and had led to more and more unnecessary constant remands. The prosecutor continuously ignores and digresses from my requests. From the beginning of my arrest and incarceration I have had no way possible to defend the charges levelled against me, this in itself, is a direct breach of my Constitutional rights.

“There has been no indulgence from the magistrate, even pre-trial was not even a pre-trial, as the magistrate was always biased from the start. This is now the third magistrate that has been biased towards me and my defence. This was more of a threat that I must keep silent or the proceedings will carry on without me, again, this is an utter disregard to my rights and my defence. The magistrate’s duty was to guide me through the entire proceedings and ensure that my rights are not contravened. This sadly, was never the case from the start though,” he said. 

Ramkistan said he requested further information which was not furnished to him.

“I had served the state (Ms Vaneshree Moodley) a J803 discovery form, requesting my discovery information (further information), which is needed urgently in order to form my defence in my trial. The prosecutor then commits perjury and to state that she never received it on the date of service to her which was well in September last year. After a couple of months gone by, Ms Vaneshree then advises that the information is privileged information and I cannot have access to information that I seek,” he said. 

Ramkistan said a transfer would not result in any inconvenience for the respondent and was not done to delay the matter.

In her responding submissions, Moodley told the court that a person, Usheen Dayal, who Ramkistan had seemingly given power of attorney to, wrote to the offices of the National Director of Public Prosecutions (NDPP) and KZN Director of Public Prosecutions  (DPP) based at the NPA offices in Pietermartizburg, calling for an investigation and that she be removed from the matter. 

Moodley said in a response to Dayal, the NDPP said they have received and studied a comprehensive report from the KZN DPP in respect of the issues raised in their representation. 

She said in the response from the acting deputy national director, it read: “It is my decision that there is nothing untoward in the handling of this matter by any prosecutors and I will take no further steps in this regard. The delays in this matter is largely due to the various applications lodged by Mr Ramkistan. I deem the matter finalised and proceed to close my file.” 

Moodley said in response to Dayal, the KZN DPP said: ‘Kindly note that the decision of the NDPP is final regarding the issues you have already raised in your representations…”

She further submitted that she refused to recuse herself from the matter and was ready to proceed with trial. 

Moodley said in respect of the transcripts of proceedings being furnished to Ramkistan, he had informed the court in January this year that he would pay for any further transcripts that he required. 

She said he had been furnished with transcripts that he previously requested. 

Moodley said she had contacted Gauteng Transcribers, who had informed her that Dayal, on behalf of Ramkistan had enquired about the price of transcripts. 

She said upon providing a quote and a request to confirm or deny, Dayal responded, “Please decline”. 

Moodley said Ramkistan was provided with further particulars that he required such as the charge sheet and statements. However, she said some of the requested information such as the warrants for his arrest and seizure of his cellphone did not exist. 

Magistrate Mapaseka Bellinah Phooko-Base, in handing down her ruling said she didn’t foresee any apprehension or bias on her part that would warrant her to recuse herself. 

She further stated that there was no ‘threat’ made towards Ramkistan. 

She said Section 159, Sub-section 1 of the Criminal Procedure Act, outlines the circumstances under which criminal proceedings can continue in the absence of an accused individual. 

She said specifically, it states that if an accused disrupts the proceedings to the point where they become impractical to continue in their presence, the court can direct their removal and proceed without them. 

“The allegations or arguments have no merit.”

Magistrate Phooko-Base said Ramkistan also did not provide any evidence to the court in regards to why he wanted the matter moved to  specifically, a court in the Western Cape.

She said after considering the submissions of both parties the application for recusal was dismissed. 

Magistrate Phooko-Base said the State is granted the opportunity to present its case, and that Ramkistan will have the opportunity to cross-examine each witness and challenge the evidence by the State. 

The trial will now commence. 

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