ZELDA VENTER

A fainting spell in the witness stand by a defendant in a damages claim became a legal issue after the magistrate questioned whether “this was just an act” and the defendant now wants the magistrate to recuse himself from the case.

The issue arose after a magistrate, Hein Louw, claimed damages for alleged defamation against the defendant, Zelda Steenkamp.

Her lawyer withdrew from the case after Steenkamp wanted a postponement of the matter and the magistrate refused. He called Steenkamp to the witness stand to explain to the court how she was now going to proceed with her case.

But Steenkamp “fainted” in the witness box, which necessitated a postponement of the matter. The magistrate doubted whether the fainting was not just a ploy by Steenkamp to get her postponement.

She felt that he was biased towards her and turned to the Gauteng High Court, Johannesburg for him to be removed from the defamation case.

Steenkamp defended the defamation action in the lower court and, armed with her lawyer, attended the first day of the proceedings, where she asked for a postponement.

When this was refused, her lawyer withdrew, leaving her alone to defend the matter in person. After she was called to the witness stand to explain how she was going to handle her case without a lawyer, Steenkamp collapsed.

The sceptical magistrate questioned whether this was indeed a medical condition or whether it was an act, seeing that she wanted a postponement and he had refused it.

He ordered Steenkamp to provide medical evidence by way of "a comprehensive report" about her condition so that the court can also be apprised of what happened.

When the hearing resumed, Steenkamp was represented by an advocate, who handed a copy of a note from a doctor to the magistrate, in which the doctor said Steenkamp had passed out due to low blood pressure.

Not happy with this explanation, the magistrate insisted that the doctor should come and testify about Steenkamp’s medical condition. The magistrate subpoenaed the doctor to come to court to clarify the medical condition.

The doctor could only guess that she had passed out due to low blood pressure and said he does not think it was an act.

But the magistrate was not persuaded and rejected the medical evidence as lacking in explanation on why she fainted. He subsequently ordered Steenkamp to foot the legal bill for that day on a punitive scale when the matter could not proceed.

Steenkamp now also wants the cost order against her overturned.

Judge Thina Siwendu, in turning down Steenkamp’s appeal, said the magistrate was cautious and indulged Steenkamp in circumstances where the court processes were not complied with and were repeatedly undermined.

She added that the magistrate cannot be faulted for expressing scepticism about Steenkamp's condition.

“What unfolded after she was sworn in was not congruent with earlier observations. The trial court was best placed to observe her demeanour and the inconsistencies. There is no basis for this appeal court to doubt or disturb the observation or findings, justifying the magistrate to call for medical evidence.”

The judge concluded that the utterances made and scepticism expressed cannot reasonably form a foundation for suspicion of bias or grounds for recusal of the magistrate.

zelda.venter@inl.co.za