Zuma graft trial judge Piet Koen says ‘conscience’ and ‘strong views’ compelled him to recuse himself

[Nat Quinn]

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.

‘Ihave 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.”

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.

Zuma graft trial judge recuses himself, citing ‘conscie… (dailymaverick.co.za)

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