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In Detail: This is why Judge Piet Koen dismissed Jacob Zuma’s application on Billy Downer appeal

Former president Jacob Zuma suffered yet another legal setback on Wednesday when Pietermaritzburg High Court Judge Piet Koen dismissed his application to appeal the Advocate Billy Downer SC recusal ruling. Picture: Theo Jeptha/ African News Agency (ANA)

Former president Jacob Zuma suffered yet another legal setback on Wednesday when Pietermaritzburg High Court Judge Piet Koen dismissed his application to appeal the Advocate Billy Downer SC recusal ruling. Picture: Theo Jeptha/ African News Agency (ANA)

Published Feb 16, 2022

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Pietermaritzburg - Former president Jacob Zuma suffered yet another legal setback on Wednesday when Pietermaritzburg High Court Judge Piet Koen dismissed his application to appeal the Advocate Billy Downer SC recusal ruling.

Koen, citing several reasons, said he saw no prospects of success even if the matter was heard by the Supreme Court of Appeal, and the high stakes corruption trial must go ahead on 11 April 2022.

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Issuing strong instructions, Koen said Zuma’s legal team must make sure that the former head of state should avail himself on the said date so that the arms deal corruption trial, which he previously said had been long delayed, could proceed.

Today’s ruling follows a January 31, 2022, decision by Judge Koen to reserve his judgment following a day-long oral argument by Zuma’s legal team, led by advocate Dali Mpofu SC (senior counsel), which argued that another court could rule differently.

In the main, Zuma, who skipped the judgment, wants Downer to be removed as the chief prosecutor of his arms deal corruption case, accusing him of compromising bias against him and having acted unlawfully on several occasions while handling confidential information.

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Opening his judgment, Koen said it was not in his nature to reserve his decisions on matters of appeal, but since Zuma and his legal team went beyond seeking leave to appeal and raised other legal matters, he needed time to prepare a comprehensive ruling.

One of the issues that appeared to have irked Koen and he needed to address was that Zuma and his legal team alleged that there was an irregular procedure in fixing dates for the exchange of affidavits regarding the matter.

Koen dismissed that, saying it was “unfounded and opportunistic” for Zuma to make the allegation.

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That, with respect, is what is required before an allegation of an irregularity is made against a judicial officer. It would then have been apparent immediately that the accusation of an irregularity was unsustainable. Regrettably, that was not done,” Koen said in his judgment.

Koen also dismissed Zuma’s contention that ’Downer was conflicted and could not have deposed to the State’s answering affidavit in these proceedings, because the special plea in terms of s 106(1)(h) CPA (criminal procedure act) concerned him, Mr Downer’.

“Mr Downer had deposed to the State’s main answering affidavit in response to the special plea, without any objection from Mr Zuma, and correctly so, because Mr Downer was the person best equipped to answer the allegations against him. In the present proceedings, Mr Downer has no conflict of interest with the State; on the contrary, they make common cause in opposing the grant of the application for leave to appeal and the other applications,” the Judge said.

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Sticking to his previous ruling in October last year, Koen said an appeal against the dismissal of Zuma’s special plea at this stage would, among other things, not dispose of the criminal charge against him or a substantial part thereof; it will not avoid a lengthy criminal trial, and it will not obviate the trial or substantially shorten it.

“I, accordingly, conclude that an appeal, and hence an application for leave to appeal in respect thereof, should not be entertained at this stage of the criminal trial against Mr Zuma. If that was the only issue in the application for leave to appeal, I might have been disposed to granting leave to appeal to the SCA on the basis that the law might be uncertain on this issue.

However, I consider the lack of any prospects of success in the appeal to be dispositive of the application for leave to appeal, even assuming an appeal in respect of the main judgment is available at this stage. I turn then to deal with the prospects of success of the appeal,” the judge said.

At the end, he said the trial must go ahead as previously planned.

“The interests of justice require that the matter now proceeds to trial in respect of the not guilty pleas of the two accused… The criminal trial shall proceed during the second and third terms of the 2022 court calendar of this court, where it has been set down, as previously agreed by all the parties, commencing at 10h00 on 11 April 2022, being the date to which the trial was adjourned on 26 October 2021.”

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Political Bureau

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