/ 19 October 2022

Zuma arms deal trial postponed until early 2023

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Judge Piet Koen has set the matter down for 30 January when he will announce whether he will recuse himself.

Pietermaritzburg high court judge Piet Koen on Wednesday postponed Jacob Zuma’s arms deal corruption trial until 30 January 2023 to allow him to consider whether he should continue to preside over it.

“Upon careful reflection, I have concluded that the issue of my continued involvement as presiding judge in this trial, needs in the interests of justice to be addressed,” Koen said.

He added that, for the sake of the integrity of the trial, this needed to happen before he decided any of the other issues argued before the court on Monday.

These included whether an application for leave to appeal Zuma filed to the constitutional court on Friday was properly lodged and had the effect of suspending the operation of Koen’s ruling last year dismissing a special plea that advocate Billy Downer lacked title to lead the prosecution.

“These developments have brought into sharp focus whether it is proper that I decide one or more of these issues, including eventually also such issues as to whether Mr Zuma will receive a constitutionally fair trial at the end of the day, having regard to findings I have made and views I have expressed.”

These included his pronouncements on the defence’s persistent objections to Downer’s involvement in the case.

On Monday advocate Sifiso Buthelezi, for Zuma, argued, as the defence team did in correspondence at the weekend, that this was untenable given the private prosecution Zuma has instituted against the veteran prosecutor for alleged breach of the National Prosecuting Authority Act.

Downer has denied the charge and filed an application for it to be dismissed as an abuse of court process and part of the former president’s seemingly tireless Stalingrad tactics to delay answering graft charges dating back to 2007.

His application will be heard in early December. 

Zuma claims that Downer leaked his medical records to the media. The charge is considered spurious because it refers to a letter from a military doctor merely stating that Zuma needed treatment for an undisclosed ailment, which his own lawyers had filed as a part of the public court record. 

But it also sees Zuma bringing a litany of discredited allegations that Downer conducted himself improperly and lacked impartiality, which were raised in the special plea Koen dismissed.

Hence, the judge has asked the parties to file submissions as to his possible recusal. They now have until 3 November to do so.

There has been no formal application from the defence for Koen to recuse himself, although it has always been anticipated that at some point one may follow as part of the strategy to stall the trial.

Koen said his decision was therefore “mainly one of my own conscience”.

“The integrity of the trial must be beyond any criticism or reproach and it is my task to ensure that it meets that expectation.”

Downer had argued for the trial to proceed on 7 November. Zuma’s lawyers countered that it could not because their approach to the apex court last week suspended the ruling that dismissed that plea that he be removed.

That application marked their fifth attempt at appealing the ruling, and the second time they have taken it to the constitutional court. 

Koen denied Zuma leave to appeal in February. The supreme court of appeal (SCA) followed suit in March.

Zuma then filed an application in terms of section 17(2)(f) of the Superior Courts Act, pleading with the then SCA president, Judge Mandisa Maya, to refer the matter back to the bench for reconsideration. On 20 May, Maya rejected Zuma’s application.

His defence team then asked the apex court for leave to appeal her decision. On 23 September, the court denied him leave. 

Downer on Monday told the court that in instances such as this, where reconsideration is refused, the matter reverts to the ordinary default appeal process. Zuma should then have approached the apex court within 15 days for leave to appeal the high court ruling, instead of asking it to overturn Maya’s decision.

There was only one reason for taking the “strange” latter approach, which also meant that they missed the deadline to bring a proper application for leave to appeal to the apex court by months, he submitted. 

“They don’t want a final judgment from the constitutional court because, we submit, because they fear a final decision and that that would then allow the trial to continue. And we have argued before that this is in line with what has come to be termed from this case, and a series of cases, the Stalingrad approach.”