Cape Town — Cape High Court Judge Dennis Davis yesterday dismissed with costs an application by Fidentia boss J Arthur Brown for Davis to recuse himself from a sequestration application he had heard in November last year.

Davis said there had not been an application for him to recuse himself from the case when previous counsel appeared for Brown during a hearing to have the estates of Brown and his wife Suzette sequestrated.

Rashad Kahn, Brown's advocate, argued yesterday that Davis had prejudged the situation in remarks he made during the sequestration hearing.

He said Davis had been biased by "various unproven allegations" against Brown in the media.

Davis had remarked that "we are dealing with a gentleman who has misappropriated millions of rand". He had also allegedly commented that Brown had "numerous criminal charges against him in relation to the misappropriation of moneys to widows and orphans".

Davis had qualified his remarks by saying he had referred to them as being "hypothetical".

While Brown could not appeal against the provisional sequestration order, Kahn said Davis should "on his own" have withdrawn from the case.

He gave an analogy of a judge hearing the case of a relative charged with murder, and said in such circumstances the judge would withdraw from the case voluntarily. Kahn argued that Davis had illustrated his prejudice toward Brown in particular, and had in effect deprived Brown and his wife of the right to a fair trial.

Davis dismissed the application, saying Kahn had "overstepped the mark" in bringing the application and also awarded punitive costs against him, including the cost of two counsel.

He said the application was a "desperate ploy to postpone the course of a proper hearing" and "an abuse of proceedings".

Davis said no application had been brought during or after the earlier hearing, at which different and experienced lawyers had represented Brown, or before he made the provisional sequestration order.

If there had been such an application at the time, the matter could have been heard in its totality, the judge said. No case law had been placed before him indicating that he had to recuse himself.

The judge said there was no prejudice against the rights of the Browns which he "seriously safeguarded", as was his duty as a judge. He found there was no basis for the application.

Kahn said he would petition the Supreme Court of Appeal, adding that Brown would "soon" apply to have Fidentia removed from curatorship.

Earlier, a fraud and theft charge against Brown in the Cape Town Magistrate's Court was postponed to February 25 for a trial date.