It's back to all-systems-go for graft trial after judge dismisses Jacob Zuma's 'frivolous' bid to recuse Billy Downer

‘The criminal trial should proceed,” said Judge Piet Koen in a summary of the judgment, and if Zuma wanted to challenge the special plea decision, he would have to wait for the long-delayed trial to end.

“If an appeal of the main judgment was to be entertained at this stage of the proceedings, it would not lead to a just and prompt resolution of the real issues between the parties, the real issue being the guilt or the innocence of Mr Zuma. And it would not be in the interest of justice for the appeal to be heard now,” he said.

“It does not mean that Mr Zuma cannot appeal the dismissal of the special plea, but only that he cannot do so now. The trial must first be completed.”

Koen said that embarking on an appeal process would be a waste of time, particularly if Zuma was eventually acquitted. He said that even if it was deemed acceptable to allow for special plea applications to be heard by the Supreme Court of Appeal (SCA) before an actual judgment in the main matter, he was “satisfied that the application for leave to appeal should be dismissed on the basis that it lacks reasonable prospects of success”.

In October 2021, Koen dismissed Zuma’s application to have Downer removed from the impending trial on the basis that he has “no title” to prosecute, in terms of Section 106 (1)(h) of the Criminal Procedure Act. The former president’s legal team had argued that should he have been successful in the special plea, he would be entitled to an immediate acquittal in terms of Section 106 (4) of the same act.

In that ruling, Koen said that “many” of the 14 specific items raised by Zuma’s legal team in support thereof were “based on speculation or suspicion or are based on inadmissible hearsay evidence and not on fact”. Even if in some instances there might be possible irregularities, these did not warrant Downer’s removal as the prosecutor in the case or stripping him of his title to prosecute.

Oral argument for the leave to appeal – opposed by the State – was heard three weeks ago.

Koen said on Wednesday that he had prepared a 60-page written judgment that dealt with legal arguments, and which quoted extensively from various authorities, but that this would only be of interest to lawyers.

He said that had the only issue been whether Zuma could appeal the special plea, it would have been likely that the decision would have occurred weeks earlier. But because Zuma’s team brought various other applications and objections before the court, he had required time to adequately address each.

Pietermaritzburg High Court Judge Piet Koen dismissed former president Jacob Zuma’s application for leave to appeal. (Photo: Sandile Ndlovu / Pool)

Koen summarised Zuma’s leave to appeal and his additional applications in eight broad points:

• Koen’s handling of the special plea matter was irregular;


• Downer should not have filed an affidavit in the appeal matter;


• Zuma should be granted leave to appeal before the main matter has been finalised;


• Koen’s interpretation of what “title” meant was wrong;


• Zuma’s demand that Koen should have allowed the special plea to go to trial and oral evidence;


• Zuma’s request to enter further evidence into the application for leave to appeal;


• An additional demand that, due to the alleged string of irregularities, the matter should automatically be sent to the appeals court; and


• That because Zuma raised questions of law, it should also allow direct access to the appeals court.

In all instances, Koen dismissed Zuma’s claims.

He said the understanding of what “title” meant was based on two judgments by the Supreme Court of Appeal, and even if he disagreed with the analysis, which he did not, he was bound by the higher court’s judgments.

He said Zuma had agreed to pursue his special plea via affidavit, and the claim that it should have been brought to trial would not have been in the interests of justice.

“Although Mr Zuma raised the special plea by way of affidavit, he argued that a trial should have followed, where he would have wanted to call Mr Downer and others as witnesses and cross-examine them with regards to his concerns of possible political interference in his prosecution, the possible involvement of foreign intelligence agencies and alike.

“I conclude… that there is no substance to the contention that the hearing of the special plea should have taken the form of a trial with oral evidence being led and witnesses being subjected to cross-examination and the like.

“To require witnesses to be subpoenaed even before the criminal trial proper would have commenced, for them to be cross-examined on various issues, many of which might never raise as issues in the trial, would not be in the interest of justice.”

Flyers bearing the face of former president Jacob Zuma outside the Pietermaritzburg High Court, where Judge Piet Koen dismissed Zuma’s application for leave to appeal. (Photo: Sandile Ndlovu / Pool)

Jacob Zuma supporter Carl Niehaus at the Pietermaritzburg High Court. (Photo: Sandile Ndlovu / Pool)

Jabob Zuma supporter Jimmy Manyi briefs the media after Pietermaritzburg High Court Judge Piet Koen dismissed the former president's application for leave to appeal. (Photo: Sandile Ndlovu / Pool)

Koen said Zuma’s claim that there had been an “irregularity” in how he handled the matter was “factually incorrect, unfounded, and with respect, opportunistic”. Furthermore, Downer was allowed to file an affidavit as he was “directly affected and best qualified to respond to the allegations”.

As to Zuma’s claim that because he had raised questions of law, the matter should be heard by the SCA, Koen said no grounds for this had been “clearly stated”, with “sufficient certainty or required clarity” for the issue raised to be upheld.

“The criminal trial should now resume. It should proceed during the second and third terms of the court calendar of this court, commencing from 11 April 2022. We shall reconvene at 10am on 11 April,” concluded Koen.

Zuma is accused of receiving 791 payments, totalling R4.1-million, between 1995 and 2004 from his former financial adviser/economic adviser Shabir Shaik and Shaik’s companies, to help arms company Thales, accused number two, to secure lucrative defence contracts from the government as part of the country’s multibillion-rand 1999 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 is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud. Thales is facing one count of racketeering, two counts of corruption and one count of money laundering.

Both parties have pleaded not guilty to all charges.  DM