Judge considers recusing himself from Jacob Zuma graft case over ‘strong’ views on Billy Downer saga

Karyn Maughan at Pietermaritzburg High Court on October 17, 2022 in Pietermaritzburg, South Africa. Former President Jacob Zuma and French arms company, Thales are facing charges of corruption, fraud, money laundering and racketeering. (Photo: Gallo Images / Darren Stewart)

By Des Erasmus

19 Oct 2022

The judge presiding over Jacob Zuma’s protracted arms deal corruption trial in the Pietermaritzburg High Court has adjourned proceedings to 2023, also indicating that it may be in the ‘interest of justice’ to recuse himself.

The presiding judge in the State’s fraud and corruption case against former president Jacob Zuma asked the parties involved in the matter on Wednesday for submissions on whether he should recuse himself from the trial.

Judge Piet Koen said there was a necessity to adjudicate on his role in the trial considering “a number of developments” that had recently taken place.

Koen indicated on Monday that he may have to recuse himself, given some of the “strong” views he expressed when dismissing the former president’s application for veteran prosecutor Billy Downer to be removed from the trial via a “special plea”, and his denial of leave to appeal the same.

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

The developments, Koen told the various legal representatives at the Pietermaritzburg High Court on Wednesday, were Zuma’s private prosecution of Downer; Zuma’s further application launched on 14 October 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.

“These developments have brought into sharp focus whether it is proper that I decide one or more of these issues, including eventually also issues such as with whether Mr Zuma will receive a constitutionally fair trial at the end of the day,” said Koen.

Jacob Zuma at the Pietermaritzburg High Court on 10 October 2022. (Photo: Gallo Images / Darren Stewart)

“Although the issue is mainly one of my own conscience, I invited the parties during argument on 17 October to address any written submissions they may wish to place before me in regard to my possible recusal by Friday, 21 October 2022, to which they raised no objection.

“Upon careful reflection, I have concluded that the issue of my continued involvement as presiding judge in this trial needs, in the interest of justice, to be addressed preliminary to any decisions [being made on the various recent developments] and any further directions regarding the resumption of the trial,” said Koen.

He understood this could lead to further delays, he said, but the reality was that the trial would not proceed in November 2022 and was likely to only continue in the second quarter of 2023.

Koen said there was thus ample time to resolve all of the issues in order to give Zuma a fair trial.

“The integrity of the trial must be beyond any criticism or approach. I had initially contemplated that the matter be adjourned to a date later this year for judgment (on his possible recusal) but that would have been an optimistic expectation,” said Koen.

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“Having regard to the complexity of the issue, as my preliminary research in the last few days has suggested and having regard to my current workload, and in the light of the practicalities that the trial could in any event not resume until the second term of 2023, I intend to adjourn the trial to 30 January 2023.”

He ordered all parties to make submissions to the court registrar by no later than 3 November 2022 on whether he should recuse himself.

Neither Zuma (accused one) or French arms manufacturer Thales (accused two) need to be present at the January 2023 sitting, he said.

While Jacob Zuma’s various applications differ slightly, all are a continuation of his 2021 application, formally known as a 'special plea', to have prosecutor Billy Downer removed from the trial. (Photo: Gallo Images / Darren Stewart)

Karyn Maughan at Pietermaritzburg High Court on 17 October 2022. (Photo: Gallo Images / Darren Stewart)

While Zuma’s various applications, including the one filed with the ConCourt last week, differ slightly, all are a continuation of his 2021 application, formally known as a “special plea”, to have Downer removed from the trial in terms of section 106 (1)(h) of the Criminal Procedure Act, which deals with a prosecutor’s “title to prosecute”. Zuma contends that should he be successful in this, he would immediately be entitled to an acquittal.

In his application for leave to appeal Koen’s October 2021 dismissal of his special plea, Zuma introduced the allegation that Downer had breached section 41 of the National Prosecuting Act, accusing him of leaking confidential medical information to News24 journalist Karyn Maughan via a third party. Both have contended that the information was in the public domain.

Read in Daily Maverick: “Zuma’s still-mysterious ‘medical condition’ weaponised to prosecute journalist accused of disclosing it”

Koen found no merit in the allegation. In any event, Zuma recently instituted a private prosecution against the pair. Downer and Maughan have both filed applications to have the charges quashed, which will be heard in December. DM

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