Pietermaritzburg high court judge Piet Koen postponed the corruption trial of former president Jacob Zuma and French arms company Thales on Wednesday, to January 30. Koen rejected arguments forwarded by state prosecutor advocate Billy Downer on Monday, when he urged the presiding officer to “get on with the trial”.
Koen's decision is a win for the former president’s team, who disagreed with Downer’s submissions and insisted his averments were “absurd” during this week’s earlier hearing. But, instead of addressing Downer’s exit — which Koen dismissed in a “special plea” brought by Zuma earlier in 2022 (Zuma had asked the Constitutional Court for direct access on Friday to challenge the ruling) — the judge wants his own standing scrutinised.
Koen said the issue was “mainly one of [his] own conscience” but he perceived the necessity to determine if it was “in the interests of justice” for him to continue hearing the high-stakes case, including since it is paramount, and required by law, Zuma’s trial is constitutionally fair.
“But this delay and the fact that this trial will not be able to proceed during November 2022 are unfortunately inevitable and required in the interests of justice. The integrity of the trial must be beyond any criticism or reproach and it is my task to ensure that it meets that expectation,” said Koen.
He has ordered the state, which is pursuing Zuma and Thales over alleged kickbacks linked to SA’s 1990s arms procurement, and Zuma's team to submit arguments about his possible recusal by November 3.
If the state were to find that Koen should, in the interests of justice, opt out with another judge introduced to preside, it would most likely cause further delays. The new judge would have to become familiar with the case.
On Monday, Downer said issues had “deprived us for almost a year of trial” and accused Zuma of Stalingrad tactics. Zuma and Thales were charged in May 2021, when they pleaded not guilty. The latest court date in 2023 is 20 months after that.
The Jacob Zuma foundation welcomed Koen’s “sober” decision. In a statement issued by its spokesperson, Mzwandile Manyi, on Wednesday afternoon, his foundation said it “shows there’s still hope for the SA judiciary” in a trial “bedevilled” by controversy.
The statement raised Downer’s status as an accused in the private prosecution the former president has brought against him and News24 legal journalist Karyn Maughan, over an alleged breach.
“The issue will be referred to the Legal Practice Council in due course,” said Manyi who claimed Downer was arguing from a “selfish” standpoint.
Manyi said Koen thought “his own position has been made untenable” and welcomed his “gesture” extending the deadline for written submissions on his recusal from Friday to early November. Manyi said Zuma would consult his legal team, after which he would provide an update.
Read the order Koen handed down in full below:
Judge Piet Koen, presiding in the Pietermaritzburg high court on Wednesday, October 19, 2022:
A number of developments have taken place recently. These include, inter alia, the private prosecution of Mr Downer at the instance of Mr Zuma, Mr Zuma’s further application launched on October 14 to the Constitutional Court for leave to appeal against my main judgment, the issue as to whether that appeal is properly lodged and suspends the operation of my judgment in the interim, the state’s contention that it does not and that the criminal trial should proceed, and Mr Zuma’s objection to Mr 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 whether Mr Zuma will receive a constitutionally fair trial at the end of the day. Having regard to findings that I have made and views that I have previously expressed including those relating to the 14 grounds of complaint, which Mr Zuma had advanced during the special plea. Although the issue is mainly one of my own conscience, I invited the parties during argument on October 17 to address any written submissions they may wish to place before me in regard to my possible recusal by Friday October 21, 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 interests of justice, to be addressed preliminary to any decisions referred to in paragraph 1 above and any further directions regarding the resumption of the trial. This conclusion will inevitably necessitate an adjournment of the trial. I appreciate that this adjournment will take up time when the trial otherwise might possibly have proceeded, thus resulting in a further delay which the state has been at pains to prevent.
But this delay and the fact that this trial will not be able to proceed during November are unfortunately inevitable and required in the interests of justice. The integrity of the trial must be beyond any criticism or reproach and it is my task to ensure that it meets that expectation. The adjournment occurs during a time in the court calendar when the December recess is looming. The last day of the current term is December 2 and when the trial could, in any event, not continue. Counsel are also not available during the first court term in 2023. That will allow time for the issue to be determined without undue haste.
I had initially contemplated that the matter be adjourned until a date this year for judgment. But that would have been an optimistic expectation 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. In light of the practicality that the trial could, in any event, not resume until the second term of 2023, I intend to adjourn the trial until January 30 2023. This will avoid adjournments in the interim period while my judgment is being prepared. In the circumstances, I also extend the period for the parties to file any written submissions they may choose to file to November 3 before I commence work on the judgment.
The following order is therefore accordingly granted:
- The trial is adjourned to January 30 2023;
- The parties are requested to submit any written submissions they may wish to place before the court as whether the presiding judge should continue to preside in the trial or recuse himself which they may wish to advance to the registrar on or before November 3;
- On the basis that the accused undertake to appear on any subsequent date to which the trial is thereafter adjourned, Mr Zuma and the representative of Thales are excused from attendance on January 30 2023.
Update: October 19 2022
This story has been updated with additional information.
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