On Thursday, Western Cape High Court acting Judge Leslie Weinkove defended some of his remarks that sparked an application to have him recused in the Bromwell Street eviction case
When faced with a request to hear the recusal application on Thursday morning, he said he first needed to consider the entire case and the relevance of the complaint.
Advocate Norman Arendse, for the complainants, argued that if the recusal was successful, it would be inappropriate for him to hear the balance of the main application in any event.
Contextualising his comments for the first time, Weinkove said his questioning of a kitchen assistant’s expertise had formed part of the court’s usual inquiry.
“I questioned that because I wanted to know on what basis she was an expert and how she could give opinion on the face of information given by the city. Now you are saying I must recuse myself because I dared to question her affidavit?
“If that is the kind of conduct of a judge which justifies recusal then so be it, but it doesn’t seem to me at this stage that I was in any way antagonistic to her and that I gave her any reason to believe I would treat her unfairly.”
Kitchen assistant Charnell Commando, who works at the popular Café Ganesh in Observatory, and 14 other complainants facing eviction from Bromwell Street, felt that during their court application, Weinkove had used apartheid-era terms such as “squatters” and “these people” to describe them and their situation.
They felt he had also shown bias by questioning the level of education and veracity of evidence given by people in low income occupations.
Commando had identified and documented vacant land in Woodstock and the Cape Town CBD to present as alternatives to Wolwerivier, so they could stay in the area after their eviction.
He stated at the time: “What’s her name? Charnell? She is a kitchen assistant in Observatory and now she’s an expert. She doesn’t know what the budget of the city council is; she doesn’t know what money they get.
“She doesn’t know this stuff, she is a kitchen assistant.”
Weinkove said it was unfair and incorrect for Arendse to include a complaint in another matter that was heard in September 2016.
In that matter, a business rescue application, the court had raised questions about whether a gardener understood complex English and Latin terms in an affidavit he deposed.
“I was protecting Mr Nkhomo, who was the gardener, and who was bringing the application because his boss said so, and didn’t understand the multi-million rand business his boss was running,” said Weinkove on Thursday.
“You need to understand why I was upset about it – because it struck me that Mr van der Merwe was using his staff to bring an application and was abusing the processes of the court.”
Arendse said the court “went beyond that and questioned Mr Nkhomo’s credibility, his educational background and that kind of thing”.
The recusal application will be heard on 3 and 4 August, at the same time as a hearing for further evidence in the main application.
On Thursday, Arendse revealed they had received email correspondence which appeared to show the city had not complied with the conditions of environmental authorisations.
He was of the view that it was material to their case, with the city either having to consult further with the department of environmental affairs or apply for a deviation from some of these conditions.