KwaZulu-Natal High Court judge Petrus Arnolus Koen had to deal again with the issue of why he recused himself from the arms deal corruption trial of former president Jacob Zuma and Thales during the Judicial Service Commission (JSC) interviews on Monday.
Koen recused himself during the criminal trial proceedings at the Pietermaritzburg High Court in January last year.
The recusal came 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 JSC interviews on Monday for three vacancies at the Supreme Court of Appeal (SCA).
A total of six candidates have been shortlisted for the three SCA vacancies. The interviews kicked off on Monday at the Maslow Hotel in Sandton, Johannesburg.
Other candidates who were interviewed are judge Elizabeth Baartman, judge Mahendra Chetty, judge Phillip Coppin, judge Nozuka Mjali, and judge Leonie Windell.
Chief Justice Mandisa Maya is presiding over the proceedings, her first time chairing JSC interviews since assuming office as chief justice on September 1.
During Koen’s interview, one of the commissioners, DA MP advocate Glynnis Breytenbach, asked him to elaborate on why he recused himself from Zuma’s trial.
Conscience dictated I must recuse myself
Koen said that “the administration of justice, the requirements of the constitution, and his conscience” dictated he must recuse himself.
“I want to revisit your recusal in the Zuma matter. You actually got it right [in terms of your decisions],” said Breytenbach.
“You got the law right, and all your decisions in the matter were right and vindicated in every court thereafter.
“In retrospect, with the luxury of an armchair view, would you perhaps decide differently in that matter today? Would you excuse yourself?
“Your recusal took the matter three years back, taking into consideration this matter has been on the roll for 20 years.”
Koen responded: “With respect, I take issue with the last statement. Another judge was appointed. Delays ensued, not because of the recusal. He could have proceeded with the trial.
“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].”
Career spanning 18 years
Afterwards, Maya asked Koen how many times he has recused himself from a matter in his 18 years as a judge.
Koen said he has only recused himself once in his 18-year career, and that was in Zuma’s arms deal corruption trial.
Koen, aged 64, has been a judge for 18 years since his appointment as a presiding officer of the KwaZulu-Natal Division of the High Court in November 2006.
The JSC is interviewing 54 shortlisted candidates to fill vacancies in the SCA, Land Court, Labour Court and Labour Appeal Court, and various divisions of the high court.
The JSC interviews will run until Wednesday next week. This week’s interviews are taking place at the Maslow Hotel in Sandton.
The interviews next week will take place at the NH Hotel, also in Sandton.
