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Durban - The gloves will come off on Friday morning in the Durban High Court trial in which former KwaZulu-Natal Judge President Chiman Patel is suing the state for as much as R3m for malicious prosecution.
In written heads of argument, which have been filed with the court ahead of oral argument, Patel’s lawyers say the province’s prosecutions boss Advocate Moipone Noko, who recommended Patel’s prosecution, was a "pathetic witness".
"It is a matter of great regret to say this of someone who is supposed to be an officer of the court.
"She almost never answered a question posed to her directly. She was evasive, long-winded.
"Stubborn, combative, argumentative, arrogant and obtuse may appropriately be used to describe her behaviour and performance on the witness stand," advocates Vinay Gajoo and Richard Salmon said in their submission to Judge Aubrey Ledwaba, a Gauteng judge seconded to hear the trial.
"Her testimony lacked credibility and drives one to the conclusion she was hellbent on prosecuting him."
'Humiliating and demeaning'
Patel instituted the legal action after he was summonsed to appear in court on charges of crimen injuria (criminal defamation) relating to an incident in his chambers on October 22, 2013 when he allegedly shouted at a stationary clerk, Lindiwe Nxele and called her "rubbish".
He denied this, saying he had used the word rubbish in reference to his having to deal with an administration issue, and to Nxele’s work asking "why do I have to put up with this rubbish?"
Two months later, without explanation, the charge was withdrawn on the day the trial was to start.
Patel took early retirement. He said it was because of the humiliation of being charged criminally.
Evidence in the civil matter concluded last month after Noko testified, denying she had acted maliciously.
She said: "I was shocked when I saw the docket...the insults that he (Judge Patel) allegedly used".
"You can never say someone’s work is rubbish. It is humiliating and demeaning… a violation of one’s dignity."
Noko said she had "seen corroboration" in the three witness statements and had recommended in a memorandum sent to the then-National Director of Public Prosecutions, Mxolosi Nxasana that the judge be prosecuted.
'Pillar of society'
The charges were withdrawn after a prosecutions team re-interviewed the witnesses.
Patel’s legal team have submitted that Nxele too was a bad witness.
She had "advanced no less than eight contradictory versions" which were also in conflict with the substantially consistent statements of the two witnesses, her superior Karlien Marais and Judge Patel’s secretary Romar Morar.
Arguing for a "higher award than usual", they said this case was unique because Patel was the Judge President, "at the peak of his career", a few years off retirement with an unblemished record.
He was also a "pillar of society" they said, and the court should award him at least R1.5m in damages.
Noko’s team, Advocate Modisa Khoza and David Mtsweri, in their written submission claim Patel has no case and nothing detracted from the fact that the word "rubbish", which Nxele considered to be an impairment to her dignity, was uttered.
"He had an obligation to treat members of the court staff with courtesy. He is not immune to having a complaint laid against him."
On the issue of the amount of damages - should the court find in Patel’s favour - they said there was no need for an "extravagant" amount, suggesting no more than R150 000 to R200 000.
There had been no damage to his reputation and his record remained unblemished, they said.
Judgment is expected to be reserved.
