S v Zuma and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Koen J
• Judgment Date: 30 January 2023
• Citation: 2023 JDR 0248 (KZP)
• Docket Number: CCD 30/2018P
• Hearing Date: 17 October 2022
• Court: KwaZulu-Natal Division, Pietermaritzburg

Koen J:

Introduction:

[1]

This ruling deals with the issue of my recusal as presiding judge in the above trial. The issue arises specifically in the context of the recent private prosecution of the lead prosecutor appointed by the State, Mr Downer SC, at the instance of the first accused, Mr Zuma and Mr Zuma's request that I should remove Mr Downer as prosecutor, in the light of findings and comments I had made in previous judgments in this trial, particularly those concerning the merits of the charges on which the private prosecution is based. The issue was raised formally at the last hearing on 17 October 2022.

Background:

[2]

On 26 October 2021 I delivered a judgment (the main judgment [1] ) dismissing the special plea raised by Mr Zuma in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (the CPA) that Mr Downer lacked the title to prosecute. On 16 February 2022 I delivered a judgment (the leave to appeal judgment) refusing Mr Zuma leave to appeal the main judgment. Mr Zuma thereafter petitioned the Supreme Court of Appeal for leave to appeal the main judgment (the petition). The petition was refused with costs on 30 March 2022. Mr Zuma thereafter filed an application, pursuant to s 17(2)(f) of the Superior Courts Act 10 of 2013 (the Superior Courts Act), for the President of the Supreme Court of Appeal to reconsider the refusal of the petition (the reconsideration application). The reconsideration application was refused on 20 May 2022. It was followed by Mr Zuma then filing an application to the Constitutional Court for leave to appeal the decision of the President of the Supreme Court of Appeal in the reconsideration application.

[3]

When the trial again came before me on 1 August 2022 the decision of the Constitutional Court in respect of the application for leave to appeal the reconsideration application was still being awaited. I accordingly granted an order in the following terms:

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'1.

The trial is adjourned to 17 October 2022 10h00 as a holding date, pending the decision in respect of Mr Zuma's application for leave to appeal to the Constitutional Court.

2.

The adjournment is granted on the basis that if the application for leave to appeal has been determined by 17 October 2022, the trial shall commence at 10h00 on 7 November 2022 until 2 December 2022.

3.

If the trial is not ready to proceed by the holding date of 17 October 2022, then a further holding date and date for the continuation of the trial judge determined.

4.

On the basis that the accused undertake to appear on 7 November 2022 if the trial is to resume on that day, Mr Zuma and the representative of Thales are excused from attendance on 17 October 2022.

5.

The counsel of the parties who will be representing the accused at the trial are requested, by 7 September 2022, to provide a list of the dates of prior judicial commitments when they will not be available for the continuation of the trial, during the second term of this court for 2023.'

[4]

Since the order of 1 August 2022 was granted, Mr Zuma also commenced private prosecution proceedings (the private prosecution) against Mr Downer and a journalist, Ms Maughan. The charges forming the subject matter of the private prosecution include an alleged contravention of s 46(6) and/or other provisions of the National Prosecuting Authority Act [2] (the NPA Act). Specifically, the private prosecution of Mr Downer is premised on the allegation that alleged confidential information relating to Mr Zuma's medical condition had been disclosed in contravention of the provisions of the NPA Act.

[5]

On 23 September 2022, the Constitutional Court granted the following order in respect of Mr Zuma's application for leave to appeal the decision of the President of the Supreme Court of Appeal in the reconsideration application:

'For purposes of this application, the Court has assumed, without so deciding, that a decision of the President to dismiss a section 17(2)(f) application is in principle appealable, and that the application engages its jurisdiction. The Court has nevertheless concluded that it would not be in the interests of justice to grant leave to appeal the President's dismissal of the applicant's section 17(2)(f) application, having regard to the fact that the applicant would be entitled to seek leave from this Court to appeal the High Court's judgement to this Court. The consequential relief

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claimed by him thus falls away.'

[6]

This caused the State, preparatory to the trial resuming on 17 October 2022, to contend, as set out in Mr Downer's letter of 29 September 2022, that there were no longer any appeal processes in terms of s 18(1) of the Superior Courts Act which suspended the resumption of the trial, and that the trial should resume on 7 November 2022 by the leading of evidence.

[7]

Mr Downer and Ms Maughan appeared as accused in the private prosecution in the High Court, Pietermaritzburg, on Monday 10 October 2022. The trial in the private prosecution has been adjourned to March 2023. I have been given to understand by the Registrar that Mr Downer and Ms Maughan are also pursuing separate applications attacking the validity of their private prosecution.

[8]

On Friday, 14 October 2022, Mr Zuma filed an application for leave, apparently as contemplated in the above order of the Constitutional Court, to appeal my main judgement to that Court. [3]

[9]

In an exchange of correspondence between the parties Mr Zuma's attorney in a letter dated 14 October 2022 replied that in the light of the application for leave to appeal having been filed, the

'implications thereof are that essentially the very same situation as before continues to exist, as was anticipated in the order granted on 11 April 2022 . . . (and that the) . . . appeal processes in the Constitutional Court are yet to be exhausted.'

Accordingly, he contended that in terms of the 'prevailing dispensation the matter therefore ought to be further adjourned to a future date' obviously pending the outcome of his application to the Constitutional court to appeal my main judgment.

[10]

The State in correspondence replied that Mr Zuma's application for leave to appeal

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to the Constitutional Court was brought out of time; accordingly, that for the application to be considered, condonation would have to be granted by the Constitutional Court, but that no such application for condonation had been filed. It was contended that the current situation therefore differed materially from that which pertained when my previous orders were granted on 11 April, 17 May and 1 August 2022, and that the trial should now proceed. It is not necessary to consider this issue further as I have been advised that Mr Zuma's application to appeal my main judgment has also since been dismissed by the Constitutional Court, but it was still an issue when the trial came before me on 17 October 2022.

[11]

Mr Zuma's attorney in his replying letter on Sunday, 16 October 2022, disputed the aforesaid contentions by the State. As indicated above, that debate has now become academic in the light of the Constitutional Court's refusal of the application for leave to appeal my judgment. But significant to the present judgment is what he then went on to record, namely:

'1.

Before dealing with the contents of the said letter we are instructed to register our client's objection to any further involvement of Adv Downer in this matter. As you are no doubt aware Adv Downer is Accused no 1 in the ongoing private criminal prosecution in which our client is the prosecutor. He appeared in the very same Court A on Monday, 10 October 2022 before your brother Honourable Judge Chili. He is therefore ethically and professionally bound to recuse himself as he is clearly conflicted. In those proceedings Mr Downer has, inter-alia, ironically raised an objection against the title and standing of the prosecutor, albeit in the wrong court and without directly invoking section 106 (1) (h) of the CPA. For now we leave that issue in the hands of the court to regulate in the exercise of its own management of the proper administration of justice.

2.

In any event the legal stance adopted by Adv Downer is legally untenable.

. . .

7.

At the appropriate time and should sanity not prevail in that regard, the issue of the apparent and unlawful insistence by the NDPP to continue to assign Mr Downer to this prosecution will be appropriately dealt with:' (emphasis added)

[12]

I have for some time, following previous adjournments and the possibility of a private prosecution being launched, been concerned that certain conclusions and

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comments expressed in my previous judgments, might require my recusal, specifically in the context of the ongoing constitutional imperative that Mr Zuma must receive a fair trial. I was comfortable that the issue would not arise whilst the appeal processes were being exhausted. The merits of and issues concerning the fairness of the trial would only come to the fore once the merits of the appeals against my main judgement, including the issue of the application of s 106(4) of the CPA, would have been disposed of. My recusal would have to be considered at that stage. That stage has now been reached. Previously, if Mr Zuma was successful in any appeal, and on his construction of s 106(4) he was acquitted, then the need for a recusal would have fallen away altogether. On 5 September 2022 I accordingly alerted the then Acting Judge President of this division to the fact that I needed to reflect seriously on whether I would need to recuse myself if the appeals all failed. That was before the issue of Mr Downer's continued involvement in the trial was raised in relation to the hearing of 17 October 2022. The appeal processes having been...