Judge Koen should recuse himself from Arms Deal corruption trial – Jacob Zuma

At Jacob Zuma’s appearance in the Pietermaritzburg High Court in October, Judge Piet Koen said there was a necessity to adjudicate on his role in the trial considering a recent “number of developments”.

Those developments were:

• The private prosecution by Zuma of advocate Billy Downer, the lead prosecutor in the matter;


• Zuma’s October application 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.

Koen said he may have to recuse himself, given some of the “strong” views he had expressed when dismissing Zuma’s application that Downer be removed from the trial, and his denial of leave to appeal.

“The issue is mainly one of my own conscience,” Koen said at the time. He ordered all parties to make submissions to the court registrar by 3 November on whether he should recuse himself.

The written submissions relating to his possible recusal were filed by the state and Zuma’s legal team last week.

Referring to Koen’s own “doubts” about his impartiality, Zuma said in his submission:

“The onerous burden of ‘rebutting this presumption of judicial impartiality’ cannot be required of a litigant where it is the presiding judicial officer who has raised doubts about his own perceived lack of impartiality.”

Zuma’s private prosecution of Downer and News24 journalist Karyn Maughan rests on Downer allegedly “leaking” Zuma’s medical information contained in a letter to Maughan via a third party, in violation of the National Prosecuting Authority Act. Downer and Maughan have argued that the medical note was in the public domain.

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

Nevertheless, Zuma’s submission on Koen’s possible recusal said:

“The court appeared to hold the view that Mr Zuma failed to claim confidentiality when his lawyers filed the disputed letter in court. Honourable Justice Koen found that the letter was submitted to Mr Downer ‘without any specific restrictions as regards confidentiality’. And yet on its face the letter has the words ‘Medical Confidential’.

“The judge held that the letter was vague and general, and did not disclose anything that could be said to amount to ‘an actionable violation of Mr Zuma’s rights. But nowhere did he address the fact that the letter was written ‘Medical Confidential’ and whether that on its own called for caution in relation to the disclosure of that information.”

Zuma was able to pursue a private prosecution after the National Prosecuting Authority (NPA) refused to prosecute Downer for the alleged leak. The NPA subsequently said in a media release that the charges Zuma laid against the veteran prosecutor were without merit, “designed to intimidate” Downer and delay the Arms Deal trial.

Read more in Daily Maverick: “Ready to rumble: Zuma ups the ante and files criminal charges against prosecutor Billy Downer”

Responding to this in its submission, Zuma’s legal team said the NPA supporting Downer “despite the allegations of criminal conduct” was concerning “because it [is] consistent with a pattern of conduct by the NPA to malign Mr Zuma in the media and the public”.

Zuma’s legal team’s submission about Koen’s possible recusal repeated what they had said in previous failed applications regarding Downer lacking title to prosecute the Arms Deal trial:

“[Downer] has a personal stake in the outcome of the private prosecution and may be tempted to be vindictive and spiteful in dealing with Mr Zuma. The very serious allegations levelled against Mr Downer are emblematic of a prosecutor who has forgotten about section 179 of the Constitution and the Bill of Rights in the same.”

That Koen had expressed an opinion about the leaked medical note — which led to the private prosecution — was significant, according to Zuma’s legal team: “This has serious implications for any current and future applications for Mr Downer’s disqualification from the extant prosecution.”

Downer has launched an application to have the private prosecution declared invalid and an abuse of process.

Maughan has argued that the NPA has not yet issued a nolle prosequi certificate, and that Zuma’s attempt to privately prosecute her is an abuse of process and violates the rights to free media and freedom of expression.

These applications are set down for hearing before Judge Nkosinathi Chili at the Pietermaritzburg High Court on 8 and 9 December.

Read more in Daily Maverick: “Zuma’s security deposit raised by R500,000 as court battle with Downer, Maughan begins”

In its submission on Koen’s possible recusal, Zuma’s legal team states that Koen had made exonerating statements in favour of Downer, which the judge had described as “simply ruminations without the benefit of having heard considered argument”.

“However, these same ruminations suggest to a reasonable person that the Court is determined to exonerate Mr Downer on the basis of ‘ruminations without the benefit of having heard considered argument’. That is a classical definition of judicial bias or the appearance of bias. We find the judge’s self-introspection and candid expression of his doubts about his continuing role in the matter highly commendable. But the constitutional risk inherent in his further presiding over the trial of this matter is just too great to ignore.”

It would be a “grave error” for Koen not to recuse himself, according to Zuma’s legal team.

In its submission on Koen’s possible recusal, the State said the only new development that “may have some relevance” was the private prosecution of Downer. But there was “no substantive application, indicating the nature of the application and on what legal grounds it is based, both of which remain unknown.

The State has accordingly not been called upon to answer to any substantive application, should it be brought.

“In the absence of a substantive new application, it remains unknown, for instance, what new evidence Mr Zuma intends to rely on, if any, other than the fact of the private prosecution, or whether the allegation is that Adv Downer lacks title to prosecute, or whether fair trial considerations disbar him in some way.”

Visit Daily Maverick’s home page for more news, analysis and investigations

The Constitutional Court has said in previous cases that in applying a test for recusal, “courts have recognised a presumption that judicial officers are impartial in adjudicating disputes”. The presumption, according to the State, was based on judicial officers having legal training and expertise “that prepares them for the difficult task of fairly determining where truth may lie in a welter of contradictory evidence… It further held that the test for recusal should be applied on the assumption that a reasonable litigant would take these considerations into account.”

In dealing with the judgment for Downer to recuse himself from the trial and the leave to appeal against that decision, Koen had been open-minded, impartial and fair, according to the State:

“It is respectfully contended that no reasonable and objective litigant would on the basis of this court’s findings concerning Adv Downer in the main and [leave to appeal] judgments, have reason to apprehend that this court will not remain impartial in continuing with the trial, including adjudicating whatever future applications concerning Adv Downer may be brought on new and different grounds.”

Koen had performed his judicial duties properly, the State said. This was reflected in the decision by the Supreme Court of Appeal and its president to dismiss Zuma’s applications for it to reconsider his special plea.

“Any possible apprehension that this court will not remain impartial in future remains unreasonable,” the State said. DM