Judge Piet Koen undertook to keep safe records linked to former president Jacob Zuma's absence from court on Tuesday morning. “They are going to be handed in and they are going to be in my care and I am going to lock them away,” said Koen.
However, after a to-and-fro on records sought to be handed up by witnesses compelled to appear before court, the judge decided to park the matter and proceed with the business of the day.
“What is wrong with him and why isn't he here?” the state’s lawyer had asked. Koen said that that was not an issue for Tuesday, and the focus was Zuma’s special plea seeking to have the state prosecutor recused.
Tuesday’s hearing at the KwaZulu-Natal High Court sitting in Pietermaritzburg was allocated for arguments on Zuma’s bid to have deputy director of public prosecutions advocate Billy Downer recused for alleged bias. However, debate on the admission of sensitive records derailed the start.
As the court day began, it emerged the state had called three prisons officials to appear before Koen and submit records. They were prisons boss Arthur Fraser; KwaZulu-Natal prisons commissioner Kenneth Mthombeni, and Mpumi Radebe, head of Estcourt jail.
Advocate Muzi Sikhakhane, who previously represented Zuma in the same matter, appeared for the three prisons officials. He alerted Koen to Mthombeni’s grievances, which included claims he was coerced into deposing to an affidavit.
“Mr Mthombeni […] told me of the conduct of a certain Mr Du Plooy and, from August 11, Mr Downer himself on the phone with him,” said Sikhakhane.
He reported that an affidavit allegedly prepared by Mthombeni was, in fact, produced by Du Plooy and presented to the provincial prisons commissioner when he was not legally represented: “He feels terribly uncomfortable that he was tricked into an affidavit. Mr Fraser didn’t even know.”
Sikhakhane said the trio were not the custodians of Zuma’s medical records, and that they belonged to the military. Fraser, he added, objected to being hailed to court via subpoena. “They are quite anxious about the way in which they have been approached,” he said.
Koen replied, “I would desperately like to proceed with this trial.”
Sikhakhane said of his three clients, “They are anxious about disclosing to this court records of a former head of state or any individual for that matter.”
The lawyer for the National Prosecuting Authority (NPA) said the records should be handed to Koen as Zuma was not present in court. Advocate Wim Trengove announced that “Attendance is not optional, it is obligatory.”
Noting there was an affidavit before Koen to contextualise Zuma’s absence on medical grounds, Trengove said: “We submit that the justification falls woefully short of what is required.”
Trengove complained about Zuma sending a message, contested his right “to choose not to be here today” and intended to adduce evidence on that topic.
According to the NPA’s counsel medical experts were at odds about Zuma's fitness to stand trial. The medical team treating Zuma and the team appointed by the NPA disagreed. In the NPA-appointed team's view Zuma is fit to stand trial.
However, he added the state was not asking Koen to decide on that matter. Rather, he submitted the records should be placed under Koen's guard. “They are then under your control including what happens to them,” said Trengove.
“Including the issue of privacy,” followed Koen.
Advocate Dali Mpofu, for Zuma, fiercely argued against the handing up of prisons records he said related to Zuma’s health. It later emerged the documents concerned Zuma’s medical record only and were not medical parole records.
“If Mr Sikhakhane’s clients have been asked to bring medical documents, those documents can only relate to one thing which is the medical parole,” speculated Mpofu.
He raised medical parole as “new terrain altogether” and insisted “we can’t keep on shifting the goalposts” when the day's business was recusal.
“This process is simply delaying matters now,” Koen said.
“No, my lord. With the greatest of respect if they were your medical records or my medical records, we would not want them flying around,” replied Mpofu.
“They are not going to be flying around,” Koen responded. He urged Mpofu to refrain from using the term “bulldoze” to characterise the discussion on handling of the records.
The correctional services department announced Zuma’s release from custody on medical parole in early September. At the time, he was receiving treatment an unnamed hospital.
The transfer to hospital followed his incarceration at Estcourt prison in August. Zuma began serving a 15-month jail term for contempt of a Constitutional Court order in July, when he was admitted to a separate wing of the facility.
Following the debate on the paperwork, Koen excused Zuma’s absence. He told Sikhakhane and his clients they were excused from the proceedings and, an hour into sitting, the focus shifted to recusal.
At the time of online publication, Tuesday's proceedings were ongoing.
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