Recusal a mark of integrity

Pietermaritzburg high court judge Piet Koen has recused himself from the criminal trial involving former president Jacob Zuma. Though his decision was widely accepted and lauded in legal and political circles, it will further delay the arms deal trial.

Pietermaritzburg high court judge Piet Koen has recused himself from the criminal trial involving former president, Jacob Zuma.

Though Koen’s decision was widely lauded in legal and political circles, it will have the effect of further delaying an already delayed arms deal trial. New judge Nkosinathi Chili has to read in and catch up with the case before proceeding.

Chili will not have any penmanship on this matter, preventing even a hint of bias and thus enabling the speedy resolution of an already protracted trial South Africans want decided.

A court and its proceedings are more than those who don the robes and it is a mark of integrity when those in robes know when to step aside. The recusal came as a result of Koen’s concerns over Zuma’s subsequent, but related, private prosecution of the trial’s lead prosecutor, Billy Downer.

Zuma recently instituted the private prosecution against Downer, as well as senior legal journalist Karyn Maughan, for allegedly disclosing his private medical information.

Earlier, during the trial before Koen, Zuma also sought to remove Downer from continuing as the lead prosecutor claiming he had breached the former president’s rights by disclosing this letter to Maughan.

Koen at the time was obliged to make a finding and ruled that there had been no such breach. In the private prosecution, Zuma will seek a determination of this question again — but where criminal liability is at stake.

The private prosecution will be heard later this year.

In 2021, Maughan, in her writing, discussed the contents of a doctor’s letter that both Downer’s and Zuma’s lawyers filed before Koen, annexed to affidavits. In law, as Koen notes, unless confidentiality is claimed or parts redacted, all documents filed at court are public. It is this doctor’s letter, and whether Downer and Maughan’s alleged disclosure amounts to a crime, that form a central nexus of Zuma’s private prosecution against them.

Whether Koen should have recused himself, in this particular instance, is separate to the view that, his having done so should engender confidence in an independent bench South Africans are owed.

There is concern, of course, that Zuma’s having a finger in multiple forums could turn into a grip on matters proceeding. Were an accused person to privately prosecute his prosecutor every time — and thus subsequently delay or get a judge recused — this would hamper the administration of justice.

OWN MERITS

But every case must be decided on its own merits by the presiding judge. Despite being alive to this, and noting this possible danger, Koen has stepped aside, given the uniqueness of the situation and allowing breathing room for his robed colleagues sitting elsewhere.

In recusing himself, Koen notes: “The private prosecution having commenced, I do not in any way want to be understood as anticipating the outcome of the judgment of the court hearing that trial, or the court dealing with objections raised to the validity of the private prosecution processes instituted against Downer and Maughan.

“Regardless of what those courts might find, the objective facts are that I have expressed views contrary to the argument advanced by Zuma in respect of the alleged unlawful disclosure of his medical condition, which lie at the foundation of the criminal charge in the private prosecution and the issue whether Downer should be removed ... from the criminal trial in which I preside,” Koen said.

Whether a judge should recuse himself has little to do with whether a judge made a correct finding. As Koen notes: “The correctness of findings, conclusions and comments, and hence whether they were justified, is irrelevant. It is the fact that they were made and what, at an objective level their effect on issues which have now arisen will be apprehended to be.”

In SA, claiming a court is biased can be done by a party proving actual bias or demonstrating a reasonable apprehension of bias. It is also important to note that it was Koen himself that raised the issue of recusal, as courts are obliged not only to be impartial but must also be seen to be impartial.

“It is what the sound administration of justice, the requirements of the constitution, and my conscience dictate... The integrity of the judicial process must be protected against any reasonable taint of suspicion so that the public and litigants may have the highest confidence in the integrity and fairness of the courts,” he said.

Public confidence in the court’s administration of justice is paramount. Koen’s recusal, whether warranted or not, is demonstrative of courts placing matters above themselves. Though this will have the effect of possibly delaying the matter, Zuma’s conflict with Downer — now in criminal court — is having that effect regardless.

Further, Koen was not merely faced with a criminal trial but multiple postponements, delays and other interlocutory steps. There is maybe some merit to starting the matter afresh, with a new judge, but one can only hope that when it does land up before the new bench of judge Chili, Zuma and Thales finally have their day in court.

DECISION WAS WIDELY LAUDED IN LEGAL AND POLITICAL CIRCLES BUT WILL FURTHER DELAY ZUMA’S ARMS DEAL TRIAL