D-Day for judge Koen in Zuma matter

Pietermaritzburg high court judge Piet Koen, who is presiding over former president Jacob Zuma’s arms-deal related trial, is expected to rule on Monday whether he will recuse himself from the case.

Monday was set as another holding date for the trial, and Zuma and his co-accused, French arms company Thales, have been excused from attending.

Last year Koen gave the parties until November 3 to file submissions on his possible recusal.

The state said he should stay, while Zuma said he should go.

The “tricky situation” Koen said he was in, was that in dismissing Zuma’s attempt to oust lead prosecutor Billy Downer from the trial, in a “special plea” in which he had alleged Downer was biased, he had also “expressed a view”, effectively also dismissing Zuma’s complaint that Downer had leaked his confidential medical records to journalist Karyn Maughan, in contravention of the NPA Act.

Zuma has now initiated a private prosecution against Downer and Maughan.

Both have launched court challenges to quash the charges which are expected to be heard in March.

Zuma’s lawyers have indicated they intend to bring a further application to have Downer removed from the prosecution team, claiming he cannot be prosecuted by someone he is prosecuting. And this posed a dilemma for Koen.

At the previous hearing, he questioned whether it would be proper for him to hear that application, given his findings in the special plea and his views on the alleged “leak” of the medical records.

He said he had to be sure Zuma received a constitutionally fair trial. While the issue was mainly one of his own conscience, he asked for submissions from the state and Zuma.

“Upon careful reflection, the issue of my continued involvement needs, in the interests of justice, to be addressed before any further directions can be issued about the resumption of the trial,” he said.

“The integrity of the trial must be beyond criticism and reproach, and it’s my task to ensure that.”

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 ... This was clearly an act of judicial overreaching.

—  Jacob Zuma’s legal team, headed by advocate Dali Mpofu

Zuma’s legal team, headed by advocate Dali Mpofu, in their submissions noted this in the special plea ruling.

Koen had held that the medical report in question was vague and general and did not disclose anything that could be said to amount to an actionable violation of Zuma’s rights.

“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 ... this was clearly an act of judicial overreach,” they submitted.

“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 is just too great to ignore.”

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

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

However, Downer, on behalf of the prosecuting team, said in delivering the “special plea” judgment, Koen had been open-minded, impartial and fair, in accordance with his judicial duty, and this was borne out by the SCA and the president of the SCA dismissing Zuma’s applications for leave to appeal.

“There is no reasonable apprehension that the court will not continue impartially,” Downer said.

They said Zuma’s lawyers had only given an “informal indication” about their objection to Downer’s continued role as lead prosecutor, there was no substantive application, and the legal grounds for this remained unknown.

Should Koen recuse himself on Monday, another judge will have to be appointed to preside over the trial, which will undoubtedly be dogged by further delays.

A new trial date cannot be set until the challenges by Downer and Maughan to the private prosecutions are finalised.

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

Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to assist Thales secure defence contracts.

Shaik was convicted in 2005 but was released on medical parole in 2009. Both have pleaded not guilty.