ARMS DEAL
Zuma graft trial judge Piet Koen says ‘conscience’ and ‘strong views’ compelled him to recuse himself
The presiding judge in the corruption case against former president Jacob Zuma, Piet Koen, has recused himself from continuing with the matter, claiming that his involvement could present the perception of bias. After Koen left the courtroom, Judge Nkosinathi Chili replaced him and the trial date remains - at 17 April.
‘I have come to the conclusion, and it was not an easy decision, that I have to recuse myself from the trial,” Koen told an empty courtroom at the Pietermaritzburg High Court on Monday morning.
His decision “is what the sound administration of justice, the requirements of the Constitution, and my conscience dictate”.
“The integrity of the judicial process must be protected against any reasonable taint of suspicion, so that the public and litigants may have the highest confidence in the integrity and fairness of our courts. The trial will therefore have to continue before another judge.”
The recusal comes after Koen told the court in October 2022 that his continued involvement in the matter needed closer evaluation considering “a number of developments”.
The primary development he referred to was the pending private prosecution initiated by Zuma against lead prosecutor in the matter, Billy Downer, and News24 journalist Karyn Maughan.
Judge Piet Koen in the Pietermaritzburg High Court during the arms deal corruption trial on 30 January 2023. (Photo: Gallo Images / Darren Stewart)
Zuma’s case against Downer rests on the veteran prosecutor allegedly “leaking” the former president’s medical information, contained in a letter, to Maughan via a third party, in violation of the National Prosecuting Authority Act. Both have argued that the medical note was, in fact, in the public domain.
Read in Daily Maverick: “Groundhog Day — Zuma (yet again) insists that Billy Downer must not prosecute him in Arms Deal corruption trial”
Koen had previously dismissed Zuma’s claim that the information contained in that letter was confidential.
‘Strong views’
In Koen’s explanation for his recusal, he said that he had already expressed strong views against Zuma’s attempt to remove Downer from the trial, and that depending on the outcome of Zuma’s private prosecution against Downer, he may have to again decide on the fate of the prosecutor.
“Regardless of the outcome of the private prosecution, the objective facts are that I’ve expressed strong views contrary to the argument, and arguments advanced by Mr Zuma, in respect of the alleged unlawful disclosure of his medical condition.
“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 partly in a similar manner.
“The consequence of these findings might be that Mr Downer should continue as prosecutor in the prosecution of Mr Zuma. If that was to be my conclusion, Mr Zuma would be reasonably justified to feel aggrieved that a decision was made favouring the argument of Mr Downer dictated, or then at least very strongly influenced, by my previous findings, in order to be consistent with my previous findings, and the views I had expressed,” said Koen.
Moments after Koen recused himself, the Jacob Zuma Foundation tweeted:
“Red Robes week in session. H.E President Zuma on a winning wicket. The Foundation welcomes the sober call by judge Koen to recuse himself. We hope that the NPA will be guided accordingly and also recuse the criminally Accused no1, Adv Downer as the Prosecutor of Prez Zuma.”
Red Robes week in session.
H.E President Zuma on a winning wicked.
The Foundation welcomes the sober call by judge Koen to recuse himself. We hope that the NPA will be guided accordingly and also recuse the criminally Accused no1, Adv Downer as the Prosecutor of Prez Zuma. pic.twitter.com/3BmzIm5K1l— JGZuma Foundation (Official) (@JGZ_Foundation) January 30, 2023
Half an hour after Koen left the courtroom, Judge Nkosinathi Chili replaced him. All parties agreed that the set date for the start of the trial, 17 April, would remain.
Downer said all appeal hurdles relating to Zuma’s attempt to have him removed from the trial on the basis that he lacked “title to prosecute”, had now run their course.
“The stage has now been reached where the trial can continue,” said Downer.
Zuma had sought to have Downer removed from the trial in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA). Koen dismissed the special plea in October 2021, followed by the Supreme Court of Appeal in May 2022 and the Constitutional Court in December 2022.
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The crux of Zuma’s argument was that Downer lacked “independence and impartiality” and that the impending trial has already been tainted by political and unlawful meddling, specifically involving the National Prosecuting Authority. Downer would thus be unable to conduct a “lawful prosecution” that will uphold Zuma’s constitutional rights to a fair trial.
Zuma entered the special plea on 26 May 2021 when he also pleaded not guilty to a raft of charges relating to the controversial 1999 Arms Deal.
However, Advocate Sifiso Buthelezi, on behalf of Zuma, told Judge Chili that the former president’s legal team would be bringing another application before the court to have Downer removed from the case.
Advocates Billy Downer and Barry Roux in the Pietermaritzburg High Court for the arms deal corruption trial on 30 January 2023. (Photo: Gallo Images / Darren Stewart)
“We can now say with certainty that an application for the removal of Mr Downer is under way. As to when that application is ready [we will know at a later stage], but that application would come way before 17 April,” said Buthelezi.
Zuma was first indicted on 30 June 2005.
He is accused of receiving 791 payments, totalling R4.1-million, between 1995 and 2004 from his former financial adviser/economic adviser Schabir Shaik, and Shaik’s companies, to help French arms manufacturer Thales secure lucrative defence contracts from the government as part of South Africa’s armaments deal.
Downer was part of the original team that successfully secured Shaik’s conviction in 2005. Shaik was released on medical parole in March 2009.
Zuma, accused one, is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud. Thales (accused two) is facing one count of racketeering, two counts of corruption and one count of money laundering.
Thales too has also pleaded not guilty to all charges. DM
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Oh what a messy business – South Africa is in a downward spiral! So does this mean that a private prosecution takes precedence over a public prosecution?
From Pistorius to Zuma. With any luck Roux keeps up his lose ratio. Hehehe
What is next for the learned Barry Roux? We will judge his clients by the learned advocate they retain.
So another round to Zuma – how disgusting
If Jacob Zuma lives until he is 100 years old he will never be incarcerated.
Something urgently needs to be addressed and changed to prevent situations like this.
Judge Koen has done everything correct throughout the countless years that he has been handling this absolutely ridiculous attempt to put a former presidents in the dock for destroying South Africa for personal and family benefits.
Even the Judge knows you’re a time-wasting, state-leaching, corruption-enabling, country-destroying, crooked-as-hell, waste of air!
What nobility in the interest of justice, thank you Justice Koen. Why can Zuma not be just a little bit noble and go to jail without wasting anymore of our money? sadly nobility and Zuma and the ANC just do not go together.
I recall the famous line in Oliver Twist where Mr Bumble retorts: ” ……. then the law is a fool”. One becomes exasperated with law that seems to protect to excess a de facto treasonous fiend like Zuma.
If he had stayed and found him guilty , Zuma would have appealed against his supposed bias
Now the trial goes ahead as planned.
Good move by the judge, now what JZ? No more delays….
Wow. How did we get here 13 years later? This is an appalling abuse of legal process.
This not only removes some of the obstacles standing in the way of the trial, it also removes a possible pretext for an appeal application after the trial.
When Zuma insisted he would have his day in court, little did we expect 13 years of it… with nary a conviction in sight!
South Africa can only sort out its huge problems if the address three things:
Our legal system needs to be refined. It is a great system but has too many loopholes for unscrupulous use by rogue elements. There are rules to cater for this but they are not used. No longer fit for purpose.
Our electoral system needs to be changed to allow the electorate to have a direct say in who represents them ….. not proxy that to a group of vested interests agreed by the winning party. The representation of ‘parties’ that have coalition rights should be set at a reasonable percentage of the vote so as to make them credible representatives numbers and avoid ‘kingmakers’ who gain huge power with almost zero representation.
Lastly, the most simple and valuable rule of personal accountability for actions or a lack of them, should be most strictly followed ….. in every sphere of public activity, without fear or favour.
I totally agree and I want to add we all individually and collectively need to take responsibility for what went wrong, and we need to take control to build a great country and eliminate crime as we do that.
One hopes that even if bank robbers and other prospective criminals demand that he recuses himself the judge who do the honourable and recuse himself. We are going to have our justice system impugned by those who see bias when it does not exist and its basis cannot be proven. To stretch a trial by recusal that the public cannot understand its justification, then we are on a slippery road. The politicisation of criminal trials has become an ANC mantra. It creates an atmosphere of intimidation and fear that ought not to be counternanced by any judge worth his or her salt. We salute Zondo for refusing to be blackmailed and keeping to his oath of office. His decision placed Zuma behind bars even for few days, but it sent a message that the Chief Justice will not submit to blackmail.
I firmly believe that Koen’s or his family’s life was threatened and that is what lead to his recusal.