“Ethically bankrupt.”

That’s how Johannesburg High Court acting Judge James Grant labelled the prosecutor and defence attorney before he took the unusual step to recuse himself

“I am unable to proceed with the required trust in them,” he said, ordering that their conduct be referred to their bosses and their professional bodies.

The matter before Grant was that of Mothlanyi Serame, charged with the murder of his girlfriend.

The defence attorney sought to enter a guilty plea to which Judge Grant enquired whether he had consulted with his client about his capacity - the level of intoxication - at the time of the crime.

“I indicated that I would like to ask the accused what happened that day. Neither the State nor the defence objected,” he said.

After hearing from the accused, he ruled that he could not accept the guilty plea because there were “serious questions” about his capacity.

What ensued was an application by the State for his recusal, on the grounds that he had committed an “irremediable irregularity” by questioning the accused under oath, prejudicing the State and the defence.

“The state sought my recusal on the basis of irregularity. This is unknown in our law. An application for recusal may only be brought based on allegations of bias.

“It was submitted that it was ‘biased by irregularity’ - a novel proposition.”

He said not only was this “mischievous and flawed”, it emerged during argument that the prosecutor had recorded the proceedings, without first getting the required consent from him.

The recusal application was made in bad faith, he said,  and “I am unable to understand how the prosecutor and her senior, as advocates entrusted with the pursuit of justice, did not welcome the avoidance of a wrongful conviction for murder with relief.”

He had similar harsh words for the defence attorney who, he said, sat while engaging with the bench, rocked in his chair, spoke to others while being addressed by the bench and “snickered” at something which amused him.

“He explained that the accused had given him conflicting instructions and he was caught by surprise by what he explained under questioning.

“Nevertheless he persisted in representing the accused...this appears to reveal a lack of appreciation of the ethical dilemma he is in and the obligations on him.

“The question which arises quite patently from this is whether he did not, in fact, receive inconsistent instructions, but failed utterly to properly consult with the accused before presenting his client as guilty - in reckless disregard for the interests of his client.”

Judge Grant said the trust relationship was now “irreparably damaged”.

“I would be remiss if I failed to refer this matter to the appropriate authorities simply because far too many legal representatives who appear before our courts are ethically bankrupt.”

He also ordered that an inquiry be conducted into the accused’s level of intoxication at the time of the offence.