/ 30 January 2023

Judge Koen recuses himself from Zuma corruption trial

Judge P Koen Please Credit Judges Matter
Judge Piet Koen (Image: Judges Matter)

Judge Piet Koen on Monday recused himself from presiding over the arms deal corruption trial in the Pietermaritzburg high court of former president Jacob Zuma.

Koen said his decision was “not easy” but necessitated by views he has expressed on the merits of Zuma’s ongoing bid to force the removal of Billy Downer as state prosecutor in the matter, most recently by bringing him to court on criminal charges in a private prosecution. Zuma will on the back of this file an application that he be taken off the arms deal case.

“The collective impact of my comments in those respects cannot be ignored in the context of this present judgment,” Koen said.

He said he for some time had been concerned that strong views expressed in his previous rulings on a special plea Zuma entered in terms of section 106(1)(h) of the Criminal Procedure Act may be construed as creating an apprehension of bias.

Zuma submitted that Downer lacked title to prosecute him on fraud and corruption charges because he was not sufficiently impartial. Koen dismissed the plea and denied Zuma leave to appeal. 

The former president directly petitioned the appellate and constitutional courts and has now, unsuccessfully, exhausted all avenues of appeal.

Koen said it was at this point, where the trial now has to resume, that it became imperative that he decide whether his earlier pronouncements could be seen to create a reasonable apprehension of bias.

“I was comfortable that the issue would not arise while the appeal processes were being exhausted. The appeal processes all having been exhausted, the stage has now been reached where the criminal trial should proceed,” he said.

The additional issue had since arisen as to whether it would be proper for Downer to continue as prosecutor in the matter, pending the outcome of a private prosecution in which Zuma has accused him of breaching the National Prosecuting Authority (NPA) Act.

Crucially, the further question has arisen as to whether “it is proper that this issue and matters related thereto should be decided by me” in light of the findings he had earlier made, Koen said.

“I have come to the conclusion, and it was not an easy one, that I have to recuse myself from the trial,” he told the court.

“It is what the sound administration of justice, the requirements of the Constitution and my conscience dictate. The trial will therefore have to continue before another judge.”

Koen described the situation that has arisen as a result of Zuma instituting a private prosecution against the state advocate prosecuting him on criminal charges as “unique and novel”.

“The implications and the impact thereof need to be considered very carefully, free from any views previously expressed on matters which reasonably affect those issues.”

Zuma has charged Downer of breaching section 41 of the NPA Act by disclosing documents in possession of the authority without the permission of the national director of public prosecutions.

At issue is a copy of an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial. Zuma had attached a letter from a military doctor to his own affidavit, stating that the former president needed urgent treatment for an undisclosed ailment.

It was also attached to Downer’s affidavit. Journalist Karyn Maughan was given copies of both affidavits by counsel for the NPA. Both affidavits, plus the medical note motivating for a postponement, became part of the public court record before she published an article on News24 on the application for a postponement. 

But Zuma is alleging that his medical information was leaked, despite the fact that he failed to claim confidentiality when he filed the letter to the court. 

Koen recalled that the views he had expressed in the past about the alleged leaking of his medical records was that the letter from the military doctor was vague and its publication did not constitute a violation of Zuma’s right to privacy.

He said he further expressed doubt that the wide wording of section 41(6) of the NPA Act was necessarily constitutional or would find application on the facts of this matter. 

Koen’s remarks had also extended to questioning whether prosecutors could reasonably be subjected to “a blanket ban on the disclosure of all information in the possession of the NPA” which prevented them from giving information to journalists to ensure that the public was informed of the progress of a trial. 

“The views I have previously expressed will reasonably be perceived, I believe, to influence findings which I will be required to make as to whether Mr Downer should or should not be removed as prosecutor,” he said.

“Reasonably construed, my findings indicate that I have favoured a particular interpretation of these factual issues and they point to a reasonable and inevitable apprehension that when these facts and circumstances are presented before me again, they will be decided by me in a similar matter.”

Downer asked that the case be adjourned until 17 April for the trial to commence and run through the second and third court terms, as the state had indicated last year. 

He noted that Zuma’s legal team had warned that it would file an application for his removal, but had not yet done so.

Advocate Sifiso Buthelezi, for Zuma, confirmed that such an application would follow well before the April trial date.

Judge Nkosinathi Chili has replaced Koen