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Judge considers recusing himself from Jacob Zuma graft case over ‘strong’ views on Billy Downer saga

Judge considers recusing himself from Jacob Zuma graft case over ‘strong’ views on Billy Downer saga
Pietermaritzburg High Court Judge Piet Koen. (Photo: Sandile Ndlovu / Pool)

The judge presiding over Jacob Zuma’s protracted arms deal corruption trial in the Pietermaritzburg High Court has adjourned proceedings to 2023, also indicating that it may be in the ‘interest of justice’ to recuse himself.

The presiding judge in the State’s fraud and corruption case against former president Jacob Zuma asked the parties involved in the matter on Wednesday for submissions on whether he should recuse himself from the trial.  

Judge Piet Koen said there was a necessity to adjudicate on his role in the trial considering “a number of developments” that had recently taken place. 

Koen indicated on Monday that he may have to recuse himself, given some of the “strong” views he expressed when dismissing the former president’s application for veteran prosecutor Billy Downer to be removed from the trial via a “special plea”, and his denial of leave to appeal the same. 

Read in Daily Maverick: “Groundhog Day — Zuma (yet again) insists that Billy Downer must not prosecute him in Arms Deal corruption trial

The developments, Koen told the various legal representatives at the Pietermaritzburg High Court on Wednesday, were Zuma’s private prosecution of Downer; Zuma’s further application launched on 14 October to the Constitutional Court for leave to appeal against Koen’s special plea judgment; the issue of whether that apex court application is properly lodged and therefore suspends Koen’s special plea judgment; and Zuma’s objection to Downer remaining involved in the trial, given the private prosecution. 

“These developments have brought into sharp focus whether it is proper that I decide one or more of these issues, including eventually also issues such as with whether Mr Zuma will receive a constitutionally fair trial at the end of the day,” said Koen.  

Jacob Zuma at the Pietermaritzburg High Court on 10 October 2022. (Photo: Gallo Images / Darren Stewart)

“Although the issue is mainly one of my own conscience, I invited the parties during argument on 17 October to address any written submissions they may wish to place before me in regard to my possible recusal by Friday, 21 October 2022, to which they raised no objection. 

“Upon careful reflection, I have concluded that the issue of my continued involvement as presiding judge in this trial needs, in the interest of justice, to be addressed preliminary to any decisions [being made on the various recent developments] and any further directions regarding the resumption of the trial,” said Koen.

He understood this could lead to further delays, he said, but the reality was that the trial would not proceed in November 2022 and was likely to only continue in the second quarter of 2023.

Koen said there was thus ample time to resolve all of the issues in order to give Zuma a fair trial. 

“The integrity of the trial must be beyond any criticism or approach. I had initially contemplated that the matter be adjourned to a date later this year for judgment (on his possible recusal) but that would have been an optimistic expectation,” said Koen. 

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“Having regard to the complexity of the issue, as my preliminary research in the last few days has suggested and having regard to my current workload, and in the light of the practicalities that the trial could in any event not resume until the second term of 2023, I intend to adjourn the trial to 30 January 2023.” 

He ordered all parties to make submissions to the court registrar by no later than 3 November 2022 on whether he should recuse himself. 

Neither Zuma (accused one) or French arms manufacturer Thales (accused two) need to be present at the January 2023 sitting, he said.  

While Jacob Zuma’s various applications differ slightly, all are a continuation of his 2021 application, formally known as a ‘special plea’, to have prosecutor Billy Downer removed from the trial. (Photo: Gallo Images / Darren Stewart)

Karyn Maughan at Pietermaritzburg High Court on 17 October 2022. (Photo: Gallo Images / Darren Stewart)

While Zuma’s various applications, including the one filed with the ConCourt last week, differ slightly, all are a continuation of his 2021 application, formally known as a “special plea”, to have Downer removed from the trial in terms of section 106 (1)(h) of the Criminal Procedure Act, which deals with a prosecutor’s “title to prosecute”. Zuma contends that should he be successful in this, he would immediately be entitled to an acquittal. 

In his application for leave to appeal Koen’s October 2021 dismissal of his special plea, Zuma introduced the allegation that Downer had breached section 41 of the National Prosecuting Act, accusing him of leaking confidential medical information to News24 journalist Karyn Maughan via a third party. Both have contended that the information was in the public domain.  

Read in Daily Maverick: “Zuma’s still-mysterious ‘medical condition’ weaponised to prosecute journalist accused of disclosing it

Koen found no merit in the allegation. In any event, Zuma recently instituted a private prosecution against the pair. Downer and Maughan have both filed applications to have the charges quashed, which will be heard in December. DM


Comments - Please in order to comment.

  • Graeme de Villiers says:

    Integrity, right there. Hlophe could learn a trick here.

  • Ann Bown says:

    Another shambolic judicial mess created by former President Z and his legal genius’s. ☹️ This case should be quashed. The man is guilty – let’s all go home.

  • Rory Macnamara says:

    Whilst appreciating the Judge’s noble views and “in the interest of a fair trial” Zuma has, through his incompetent legal teams, brought the word justice into disrepute by his Stalingrad strategy and made our justice system the laughing stock of the law. I put it to Judge Koen, Sir, is it in the interest of long suffering South Africans that this trial be delayed any longer than it has? perhaps if the superior court rules against your ruling, which is highly unlikely, that would be another story although I cannot see why.

    • Jane Crankshaw says:

      Heartily agree with you. We need brave men in dangerous times….but not if there is a threat to life which is what I suspect is happening here. This is the Wild West folks,hang onto your hats because we’ve still got a long way to go….

  • Hilary Morris says:

    Having watched Judge Koen in action in the various chapters of this saga, I have been so impressed with his capacity to remain rational and calm in the face of the circus being enacted before him. Mpofu as clown and Zuma as ringmaster should have been enough to drive any reasonable man to the brink of insanity. That he has lasted this long is testimony to his strength and commitment. It would be unfortunate were he to recuse himself now, having survived all the nonsense, as he certainly must have a deeper understanding than any replacement could possibly accumulate, and his integrity shines like a beacon.

  • Colin Jennings says:

    Given that an Honourable Judge has a conscience and does have his own reasons to request recusal, these should be respected as any hint of bias will, most certainly be exploited, if the outcome is not favourable in the eyes of the accused and his legal team!

  • Easy Does It says:

    Smart move Judge. When they are done with Downer and Maughan, you were going to be the net target for time wasting and removal. While we have time, let’s close that door. The only challenge is that if you are replaced now, then they will pull the same stunt with a new judge. If you are not, they have no chance of playing that trick in the future.

    • Bruce Anderson says:

      I buy this. It’s the only way to stop the merry go around. This abuse and perversion of the legal process by Zuma’s legal team is nothing short of disgusting. Perhaps the legal system needs to take a leaf out of cricket. You get 2 opportunities to appeal/review, once they are lost, you have no more.

    • Hoffman Wentzel says:

      Spot on.

  • Cunningham Ngcukana says:

    Any judge would be asked to recuse himself by Zuma and that nonsense must not be entertained. He has shown disdain for our legal system and the judiciary throughout this saga. He wants a Nicholson who was hit hard by the SCA for his poor judgement. Judge Harmse had harsh words for believing the Zuma conspiracy drivel and that judgement should have Nicholson impeached for legal and judicial thuggery.

  • Sam Spade says:

    If Judge Koen has any doubts of his impartiality then he must rather step down and stop wasting everybody’s time. What SA needs is for Zuma to have his time in court soonest so that these issues can be put to bed once and for all. But it’s also time for the judiciary to take a firm and ‘so far and no further’ approach to the obfuscatory rhetoric and ongoing legal wrangling by Zuma’s lawyers that have seen this farcical process drag on for 20 years.

  • John Counihan says:

    Isn’t it an indictment of a hopeless judicial system when a treasonous crook like Zuma can put off his day in court forever with the complicity of a manipulative character like Mpofu? Poor judge Koen probably is choosing between carrying on regardless, and saving his life in a lawless State where hit men are for hire, and get away with it.

  • Y Cato says:

    I would urge Judge Koen to reconsider. He is being subjected to gaslighting by the unscrupulous Zuma and his cynical legal team, whose ethics are questionable. Since when do accused get to choose their own judges and prosecutors?

  • Rod H MacLeod says:

    I would be pleased if the Honourable Justice Koen remembered the following:
    A judge was once offered a case of Johnny Walker Blue by a defendant’s attorney. He accepted the whisky and entered it in his disclosure of gifts. One of his elders on the bench said to him “What kind of Judge allows himself to accept gifts of that nature clearly designed to influence his decision?” To which he replied “What kind of Judge would believe that my judgement could be impaired by a gift?”
    Come on Sir, you can do better than wilt in the face of such hot air. Stay the distance for all South Africans – please.

    • Errol Price says:

      Dear O dear ! Mr Macleod, I fear that what was in all likelihood placed before Judge Koen was of a somewhat different character compared to a bottle of Johnny Walker. An economist might have called it a ” significant disincentive ”
      More to to the point ,Don Corleone would have said that ; ‘ he was given an offer that he could not refuse “

  • Chris 123 says:

    Why??? FGS get on with it, stop pandering to Zuma.

  • Heather Darby says:

    The way this is dragging on Zuma at 81 with his Terminal Illness may not be around to get into an orange jump suit.

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