Judge Koen must go, says Jacob Zuma

While the prosecuting team in Jacob Zuma’s arms deal-related corruption and fraud trial says judge Piet Koen should continue to preside over the matter, the former president says he must go.

In October, when the trial was adjourned again until early next year, Koen invited the parties to make submissions about his possible recusal on the basis of indications that Zuma’s legal team was again objecting to the continued role of lead prosecutor advocate Billy Downer.

Earlier Zuma had attempted to oust Downer from the trial in a special plea that he had no title to prosecute in the matter because he was biased.

This was dismissed by Koen, and subsequent applications for leave to appeal before the Supreme Court of Appeal (SCA) and a reconsideration of that decision by SCA President Mandisa Maya were unsuccessful.

The matter is presently before the Constitutional Court.

Zuma has subsequently initiated private prosecution proceedings against Downer and News24 Journalist Karyn Maughan, alleging Downer “leaked” his private medical records to Maughan ahead of an application for a postponement of the trial because Zuma was ill.

This, Zuma argued, was a contravention of the National Prosecuting Authority (NPA) Act.

Zuma’s lawyers have indicated they will again object to Downer's presence at the trial because their client cannot be prosecuted by someone he is prosecuting.

While they have yet to launch a formal application, in a letter to Koen, Zuma’s attorney asked the judge to make a ruling on this.

Last month Koen said this might place him in a “tricky situation”,  given that in his special plea ruling he had already expressed a view on the matter because the alleged leak had formed one of 14 grounds Zuma had relied on in his special plea.

The judge asked the parties to make submissions on this.

In their submissions Zuma’s legal team, headed by advocate Dali Mpofu, said Koen appeared to be concerned the findings he had made (that Downer did have title to prosecute) might impact perceptions about his ability to determine if Downer should step down.

They noted Koen had said: “The integrity of the trial must be beyond any criticism or reproach.”

Zuma’s team said: “Regarding the issue of Mr Zuma’s private medical information that was leaked by Downer, the court appeared to hold the view that Mr Zuma failed to claim confidentiality when his lawyers filed the disputed letter.

“And yet on the face of the letter is written ‘medical confidential’.

“The judge held the letter was vague and general and did not disclose anything that could be said to amount to an actionable volition of Mr Zuma’s rights.”

Zuma’s legal team said Downer suffered from a “disabling conflict” and could not participate further in the case, and it was constitutionally unacceptable for Koen to allow him to continue as lead prosecutor.

“It is significant that judge Koen has expressed, directly and indirectly, an opinion about the merits of the case underlying the private prosecution against Mr Downer. This has serious implications for any current and future applications for Mr Downer’s disqualification from the prosecution.

“The court not only expressed itself strongly but also strayed beyond allowable judicial boundaries and expressed its own opinion about the merits of the envisaged private prosecution.

“It even expressed doubts on the constitutionality of the NPA Act. This was clearly an act of judicial overreaching.

“To be fair, (judge Koen) did acknowledge the statements were simply ruminations without having the benefit of argument. Unfortunately, these ruminations suggest to a reasonable person that the court is determined to exonerate Downer. 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 commendable. But the constitutional risk inherent in his further presiding over the trial is too great to ignore.”

The lawyers said it was not enough for a judge to be just, “he had to strive to make the parties and the community feel he is just; he owes this to himself, to the law and the position he holds.

“It would thus be a grave error for judge Koen not to recuse himself. We do not mean to imply judge Koen is actually prejudiced. The appearance of a preconception is sufficient.”

Downer and Maughan have both launched applications, to be heard early in December,  challenging the lawfulness of private prosecution.

Zuma’s legal team said both were using the “utterances and ruminations” of Koen in this. 

“This places judge Koen’s remarks at the centre of the disputed issues. He is almost in the position of an expert witness. 

“An impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

Koen indicated he would rule on the matter on January 30 when the case returns to court.

If he recuses himself, another judge will have to be appointed.

Zuma and French arms company Thales are facing charges of racketeering, corruption, money laundering and fraud relating to the arms deal.

Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to assist Thales to secure defence contracts. Shaik was convicted in 2005 but was released on medical parole in 2009.

The former president and Thales have pleaded not guilty.

The leading of evidence has been delayed because of Zuma’s application to have Downer removed, which could lead to his acquittal.

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