Koen recuses himself from Arms Deal trial
Publish date: 06 February 2023
Issue Number: 1013
Diary: IBA Legalbrief Africa
Category: General
KZN High Court (Pietermaritzburg) Judge Piet Koen has recused himself from further hearing former President Jacob Zuma’s arms deal-related trial. Legalbrief reports that Koen noted he had previously expressed views about the merits of Zuma’s then-pending private prosecution of lead Advocate Billy Downer SC for contravening the NPA Act for allegedly ‘leaking’ Zuma’s private medical information to journalist Karyn Maughan. Business Day notes that while Koen’s decision was widely lauded in legal and political circles, it will have the effect of further delaying an already delayed trial.
In last year’s ruling dismissing Zuma’s special plea aimed at Downer’s removal, Koen made some ‘strong comments’ about the disclosure of Zuma’s medical report and essentially said there was no merit to Zuma’s complaint that it was a breach of the Act. In a summary of his reasons for stepping out of the trial, he said the private prosecution had now been initiated and Zuma was arguing that Downer, who is being prosecuted by him, could not continue to prosecute in the arms deal trial. BusinessLIVE reports that Koen said whether Downer should be removed or not needed to be assessed properly and dispassionately, and must be perceived to be objectively evaluated. ‘I have favoured a particular interpretation of these factual issues. A consequence might be that Mr Downer should continue – if that was to be my conclusion, then Mr Zuma would be reasonably justified to feel aggrieved that a decision was made in favour of Mr Downer, strongly influenced by my previous findings, in order to be consistent.’ He noted that it was not an easy decision ‘but it is what the sound administration of justice, the Constitution and my conscience dictate’. Koen added that he integrity of the judicial process must not be tainted.
Minutes after Koen left the courtroom, he was replaced by Judge Nkosinathi Chili. All parties agreed that the set date for the start of the trial, 17 April, would remain. The Daily Maverick reports that 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. Koen dismissed the special plea in October 2021, followed by the SCA in May 2022 and the Constitutional Court in December 2022. Zuma entered the special plea in May 2021 when he also pleaded not guilty to a raft of charges relating to the 1999 Arms Deal. However, Advocate Sifiso Buthelezi, on behalf of Zuma, told Chili that the former President’s legal team would be bringing another application before the court to have Downer removed from the case. ‘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 is accused of receiving 791 payments, totalling R4.1m, between 1995 and 2004 from his former financial adviser Schabir Shaik, and Shaik’s companies, to help French arms manufacturer Thales secure lucrative defence contracts from the government as part of SA’s armaments deal. Zuma, accused one, is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud. The DM notes that Thales (accused two) is facing one count of racketeering, two counts of corruption and one count of money laundering. Moments after Koen recused himself, the Jacob Zuma Foundation tweeted: ‘Red Robes week in session. HE 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.’
While the trial is scheduled to begin on 17 April, legal experts say this is unlikely. Zuma’s legal team has indicated they plan on filing the long-vaunted new application to remove Downer before then. The trial proceedings will likely have to be postponed again pending the outcome. EWN reports that Zuma’s looming application for Downer’s removal from the case is expected to be based on the fact that the former President’s now instituted a private prosecution against the prosecutor for allegedly illegally ‘leaking’ confidential medical information to the press. However, the University of Pretoria’s Llewelyn Curlewis does not believe Zuma has a case. ‘The judge already pronounced on the fact that there is no reason for the removal of Billy Downer – there was no reason for that in October and nothing has changed since then’. Curlewis does not believe the fact that Zuma’s private prosecution against Downer strengthens his position. ‘So the mere fact that there’s the same name that pops up in both cases is maybe not a coincidence, but it may just as well be. There are two different cases, two different presiding officers that will determine the outcomes’. Curlewis says that one is not dependent on the other and that it’s not meant to be. The Mercury reports quotes legal expert Mpumelelo Zikalala as saying the integrity of the proceedings must be protected, ‘and if it means that he (Koen) has to recuse himself because he has pronounced on a certain matter, then so be it’. ‘The door is not closed on Zuma’s application for Downer to recuse himself as his lawyers can say there are new developments that have taken place,’ he said.
A Business Day analysis notes that whether Koen should have recused himself, in this particular instance, is separate to the view that his having done so should engender confidence in an independent bench South Africans are owed. ‘There is concern, of course, that Zuma’s having a finger in multiple forums could turn into a grip on matters proceeding. Were an accused person to privately prosecute his prosecutor every time – and thus subsequently delay or get a judge recused – this would hamper the administration of justice. But every case must be decided on its own merits by the presiding judge. Despite being alive to this, and noting this possible danger, Koen has stepped aside, given the uniqueness of the situation and allowing breathing room for his robed colleagues sitting elsewhere.’ Business Day states that public confidence in the court’s administration of justice is paramount. ‘Koen’s recusal, whether warranted or not, is demonstrative of courts placing matters above themselves. Though this will have the effect of possibly delaying the matter, Zuma’s conflict with Downer – now in criminal court – is having that effect regardless.’
