Judge Koen grilled about recusing himself from the Zuma trial

KwaZulu-Natal High Court judge Petrus Arnolus Koen says he stands by his decision to recuse himself from the arms deal corruption trial of former president Jacob Zuma and Thales.

Koen recused himself during the proceedings at the Pietermaritzburg High Court in January last year.

He said he had to recuse himself from the criminal trial, even though none of the parties involved in the trial called for him to step aside.

He said it would not be proper for him to hear Zuma’s private prosecution application of the state prosecutor in the trial, advocate Billy Downer SC, after having ruled on the former president’s special plea application that Downer lacked the title to prosecute because his handling of the matter over almost two decades showed he was not sufficiently impartial.

Koen was speaking at the Judicial Service Commission interviews on Monday for three vacancies at the Supreme Court of Appeal (SCA).

A total of 10 candidates have been shortlisted for the three SCA vacancies. The interviews kicked off on Monday at the Capital on the Park Hotel in Sandton, Johannesburg. 

Chief Justice Raymond Zondo is in charge of the interviews.

Conscience dictated he must recuse himself

During Koen’s interview, one of the commissioners, advocate Carol Steinberg SC, asked him to elaborate on why he recused himself from Zuma’s trial.

Steinberg said she was “disturbed” that Koen recused himself when none of the litigants in the trial called for him to recuse himself.

In January last year, Koen, who was presiding over the arms deal corruption trial of Zuma and Thales at the Pietermaritzburg High Court, recused himself, citing that “the administration of justice, the requirements of the constitution, and his conscience”, dictated he must recuse himself.

“I was rather disturbed when you recused yourself in the criminal trial of former president Jacob Zuma … Neither party called for your recusal,” said Steinberg.

“You put it [recusal] on the agenda and recused yourself. I am concerned because our Constitutional Court said the duty of the judge is to sit and hear interlocutors and exercise their discretion [when it comes to recusal].

“This is a case of huge national importance, and the judiciary has become an object of criticism for over 19 years on this case [due to the delays].

“When you recused yourself, you set back the timelines quite significantly. I want to hear your justification for why you took that unusual step.”

Judicial process should be beyond reproach

Koen responded: “I raised my continued participation in the trial, and the lawyers of Mr Zuma said they also want to raise the issue [recusal].

“The process [the trial] began on the basis that there was a challenge to the title of prosecutor on whether Mr Downer had the right to prosecute the trial.

“I dealt with other grounds in the plea for whether Mr Downer had the proper title to prosecute, and I ruled that the argument by Mr Zuma was insufficient and had no merit or substance.

“Afterwards, there was an application brought before me regarding the private prosecution of Mr Downer and contravention of the National Prosecuting Authority Act.

“I had to decide if that application was well-founded, when I had previously found that the contravention [of title of prosecutor] was without substance.

“I could not sit there, deciding the issue of whether Mr Downer should remain as prosecutor where a criminal private prosecution was on the cards, when I previously found that there was no substance to that complaint [lack of title to prosecute].

“The judicial process should be beyond reproach.”

Koen’s interview concluded just after lunch time. The interviews are continuing, with more candidates expected to be grilled on Monday afternoon.

Koen, aged 64, has been a judge for 17 years since his appointment as a presiding officer of the KwaZulu-Natal Division of the High Court in November 2006.

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