S v Zuma and Another (CCD 30/2018P) [2023] ZAKZPHC 10; 2023 (1) SACR 621 (KZP) (30 January 2023)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 10
|

|

S v Zuma and Another (CCD 30/2018P) [2023] ZAKZPHC 10; 2023 (1) SACR 621 (KZP) (30 January 2023)

HEADNOTE:
JUDGE
– Recusal –
Criminal
trial – Findings and comments made in previous judgments –
Particularly on the merits of the charges
for private prosecution
of prosecutor – Reasonable and inevitable apprehension that
if issues presented again, they
will be decided by the Judge in a
similar manner – Judge recusing himself.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: CCD 30/2018P
In
the matter between:
THE
STATE
and
JACOB
GEDLEYIHLEKISA
ZUMA

FIRST ACCUSED
THALES
SOUTH AFRICA (PTY) LIMITED

SECOND ACCUSED
Coram:
Koen J
Heard:
17 October 2022
Delivered:
30 January 2023
RULING
I recuse myself and
hereby withdraw from the trial. The trial will continue before
another judge.
REASONS
FOR RULING
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:
‘
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 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
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 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 exhausted, the
criminal trial should now proceed. A very real
issue is however
whether, considerations of a lack of title to prosecute, being the
issue I decided against Mr Zuma in the special
plea, aside, it would
be appropriate and achieve a constitutionally fair trial, regardless
of the outcome of the private prosecution,
for Mr Downer to remain as
prosecutor, or whether he should be removed, and most importantly,
whether it is proper that these and
related issues should be decided
by me.
[13]
While the private prosecution of Mr Downer at the time of my main
judgement was a mere
possibility, it has now become a reality and Mr
Downer has appeared in court. Having a situation where the prosecutor
(Mr Downer)
is an accused at the instance of the accused (Mr Zuma)
who he is prosecuting, is unique, and, it seems, novel. The
implications
and the impact thereof need to be considered very
carefully and dispassionately.
[14]
At the adjourned hearing on Monday, 17 October 2022, Mr Zuma’s
counsel requested
that I rule
mero motu
on whether Mr Downer
should continue to participate in the trial given the private
prosecution against him. I accordingly enquired
from Mr Downer during
argument whether I should decide the issues raised regarding his
continued involvement as prosecutor in the
trial of Mr Zuma and the
resumption and continuation of the trial, given certain findings I
had made and comments I had expressed
in my previous judgements. In
my previous judgments I had made some material findings and/or
expressed comments in relation to
the alleged contraventions of the
NPA Act on which the private prosecution is based. My findings and
comments are however not only
confined to the merits of the
complaints giving rise to the private prosecution. They also extend,
although probably of less material
significance when viewed
individually, to findings and comments I had made in the context of
some of the remainder of the 14 grounds
of alleged misconduct which
Mr Zuma had raised in the special plea as pointing to an alleged lack
of independence and objectivity
on the part of Mr Downer, which it
was contended would disqualify Mr Downer from prosecuting. It is so
that my judgments had by
necessary implication been vindicated on
appeal, and it might therefore be argued, that the correctness
thereof was endorsed, but
that would be to ignore that my main
judgment dismissed the special plea on two alternative bases.
[15]
It might be recalled that
I concluded in the main judgment that what was before me for
determination was solely the special plea
in terms of s 106(1)(
h)
of the
CPA, and not a separate substantive application for the removal of Mr
Downer as prosecutor.
[4]
Proceeding on that basis I had found that a narrow interpretation of
the phrase ‘title to prosecute’ in s 106(1)(
h)
was the
correct interpretation to adopt. Accordingly, the 14 grounds of
alleged misconduct relied upon by Mr Zuma did not, for the
purposes
of s 106(1)(
h
)
of the CPA, affect Mr Downer’s title to prosecute. I concluded
that these grounds of complaint might, at best for Mr Zuma,
affect
the question whether he receives, or would have received a
constitutionally fair trial, an enquiry that would only arise
at the
conclusion of the trial (or, possibly before then, but only if
appropriate, demanded by the circumstances, and allowed in
my
discretion). I however found, that if I was wrong, and what was
properly before me was an application for the removal of Mr
Downer,
and/or that the wide meaning of the phrase ‘title to prosecute’
contended for by Mr Zuma was the correct interpretation
of s
106(1)(
h)
,
that the 14 grounds were nevertheless without substance and had to
fail.
[5]
In reaching that
conclusion, I rejected these grounds, in many instances on the facts,
and made findings and expressed certain,
even ‘strong’
views. The collective impact of my comments in the aforesaid
respects, should also not be ignored. The
refusal of the various
applications for leave to appeal by higher courts as not having
prospects of success, could be based, especially
as I believe that to
be the correct application of the law, on the narrower interpretation
of the words ‘title to prosecute.
If that is so, then the
dismissal of the appeals would not have involved a tacit approval of
my views and conclusions on the fourteen
grounds of complaint which
were dismissed as without substance in the alternative. A
consideration of some, possibly most of the
facts which had given
rise to these views and findings being expressed by me, will arise
again now, and if not directly, then peripherally
in deciding:
(a)
Whether Mr Downer should remain as prosecutor, or whether I should
mero motu
direct that he be removed as prosecutor; as he is
now an accused at the instance of Mr Zuma in the private prosecution;
and
(b)
Whether Mr Zuma receives, or will have received, a constitutionally
fair trial.
[16]
Mr Zuma submits that I
would be disqualified from adjudicating these and similar issues due
to a reasonably apprehended bias on
my part because of the findings
and comments I had made previously when deciding the special plea. He
submits, regarding his contention
that I should
mero
motu
remove
Mr Downer as prosecutor, that presiding officers are not 'silent
umpires' and must intervene where it is necessary to preserve

fairness within the trial proceedings.
[6]
The latter is undoubtedly correct.
[17]
Although the issue of my recusal is mainly one of my own conscience,
I accordingly invited
the parties during argument on 17 October 2022
to address any written submissions they may wish to place before me,
concerning
my possible recusal, by Friday 21 October 2022.
[18]
Upon brief reflection, I concluded that the issue of my continued
involvement as presiding
judge in this trial needed, in the interest
of justice, to be addressed fully, preliminary to any further
decision/s in the trial
before me, particularly whether Mr Downer
should be removed, and matters flowing therefrom. This conclusion
inevitably necessitated
an adjournment of the trial at a time when it
might otherwise possibly have proceeded, thus resulting in a further
delay, which
the State has been at pains to prevent. However, this
delay and the fact that the trial was not able to proceed during
November
2022, are unfortunately inevitable but required in the best
interest of justice. The integrity of the trial, like any criminal
trial, must be beyond any criticism or reproach. Section 34 of the
Constitution affords everyone in this country the right to have
any
dispute that can be resolved by the application of law, to be decided
in a fair public hearing before a court, or, where appropriate,

another independent and impartial tribunal or forum. Section 35 of
the Constitution is similar in that it guarantees a fair trial
for
persons accused of criminal conduct.
[19]
The adjournment
fortunately spanned a time in the court calendar covering the
December/January recess, which recess was, at the
time that the
adjournment was granted, looming.
[7]
During that time the trial could, in any event, not continue. Counsel
are also not available during the first court term in 2023.
That
would allow time for the issue to be considered properly, as it is
one requiring mature reflection. In the light of the practicality

that the trial could, in any event, not resume until the second term
of 2023, I granted a postponement until 30 January 2023 for
this
judgment to be prepared, and extended the period for the parties to
file any written submissions they may choose to file,
to 3 November
2022.
[20]
I accordingly, on 19
October 2022 issued, what Mr Zuma’s counsel have termed a
sua
sponte
[8]
order inviting written
submissions from the parties as to whether I should continue
presiding over the case. The order reads as
follows:
'1.
The trial is adjourned to 30 January 2023;
2.
The parties are requested to submit any written submissions they may
wish to place before
the court as to whether the presiding judge
should continue to preside in the trial, or recuse himself, which
they may wish to
advance, to the registrar on or before 3 November
2022;
3.
On the basis that the accused undertake to appear on any subsequent
date to which the trial
is thereafter adjourned, Mr Zuma and the
representative of Thales are excused from attendance on 30 January
2023.'
[21]
I am grateful to counsel for the written submissions that were filed.
In their submissions
Mr Zuma argues for my recusal, while the State
favours me remaining as the presiding judge.
The
legal principles
[22]
I am enjoined by my oath of office to ensure, inter alia, that Mr
Zuma receives a constitutionally
fair trial, to regulate the
management of the trial, to preserve the integrity of the trial, and
to ensure the proper administration
of justice. The issue whether any
accused receives a constitutionally fair trial as guaranteed in terms
of the Constitution, is
an enquiry that is paramount and something
that should be ever present to a judge’s mind during a trial.
The integrity of
any trial must be beyond any criticism or reproach.
It is my task to ensure that the current trial also meets that
expectation.
A reasonable perception of fairness is all-pervasive.
[23]
The broad considerations to be considered in a recusal, include inter
alia the following:
(a)
A court must ensure that public confidence in the justice system is
maintained and not eroded;
[9]
(b)
Litigants should leave the court with a sense that they were given a
fair opportunity to present their
case, and that they received a
decision that is not only actually, but also perceived to be, fair,
dispassionate, objective and
free of bias.
[24]
Full confidence in the
judicial system is essential for the preservation of the rule of law,
a vital component of our constitutional
democracy.
[10]
The rule against bias is anchored in the confidence which the public
reposes in the judicial system. It reflects the fundamental
principle
of our Constitution that courts must not only be independent and
impartial, but must be seen to be so, a requirement,
if not explicit
then certainly implied in the Constitution.
[11]
In
Basson
v Hugo
it
was remarked that:
[12]
‘
The rule against
bias is foundational to the fundamental principle of the Constitution
that courts, as well as tribunals and forums,
must not only be
independent and impartial, but must be seen to be so. The
constitutional imperative of a fair public hearing is
negated by the
presence of bias, or a reasonable apprehension of bias, on the part
of a judicial or presiding officer.’
The
Supreme Court of Appeal court continued that the
‘
fundamental right
to a fair and impartial hearing is accordingly guaranteed, because a
denial of the rights
results
in the invalidity of the hearing and an order setting aside the
proceedings
.
Consequently, [in the context of the facts of that case,] if
subsequently found that the [chairperson and the member of the
committee]
should have recused themselves, the hearing of the
committee in which they took part
will
be a nullity and the proceedings set aside
.’
[13]
(my emphasis)
A
fortiori
, if it is found at the end of a trial that a judge
should have recused him- or herself, the trial will be a nullity,
will fall
to be set aside
in toto
, and will have to commence
de novo
, at considerable cost and inconvenience. The above are
material considerations, which must be present to the mind of any
judge
when considering the possibility of a recusal.
[25]
Two very important
aspects arise whenever the subject of recusal arises: the first is
the presumption of judicial impartiality,
which has been described as
a cornerstone of our legal system,
[14]
and the second is the test to be applied to determine the
circumstances in which a recusal application should succeed, or
fail.
[15]
In the final
analysis the question of recusal invariably turns on whether it is
factually indicated.
[26]
In
President
of the Republic of South Africa v South African Rugby Federation
Union
the
Constitutional Court formulated the test for recusal as follows:
[16]
'. . . the correct
approach to this application for the recusal of members of this Court
is objective and the onus of establishing
it rests upon the
applicant. The question is whether
a reasonable, objective and
informed person
would on the correct facts
reasonably
apprehend
that the Judge has not or will not bring an impartial
mind to bear on the adjudication of the case, that is a mind open to
persuasion
by the evidence and the submissions of counsel. The
reasonableness of the apprehension must be assessed in the light of
the oath
of office taken by the Judges to administer justice without
fear or favour; and their ability to carry out that oath by reason of

their training and experience. It must be assumed that they can
disabuse their minds of any irrelevant personal beliefs or
predispositions.
They must take into account the fact that they have
a duty to sit in any case in which they are not obliged to recuse
themselves.
At the same time, it must never be forgotten that an
impartial Judge is a fundamental prerequisite for a fair trial and
a
judicial officer should not hesitate to recuse herself or himself if
there are reasonable grounds on the part of a litigant for

apprehending that the judicial officer, for whatever reasons, was not
or will not be impartial.
' (footnotes omitted, emphasis added)
[27]
The grounds for recusal
stated in
President
of the Republic of South Africa v South African Rugby Federation
Union
[17]
and examined further in, amongst others,
SACCAWU
v Irvin & Johnson Limited
[18]
therefore require, either:
(a)
proof that a judicial officer is actually biased; or
(b)     an
apprehension of bias on the part of the judicial officer and whether
such apprehension is that of a reasonable,
objective or informed
person based on the correct facts.
[28]
Our law does not insist
on the proof of actual bias on the part of a judge; the appearance or
a reasonable apprehension of bias,
if proved, is enough to vitiate
the proceedings. As has been said, ‘the court will not inquire
whether [the judge] did, in
fact, favour one side unfairly’
[19]
where ‘the
allegation is reasonable apprehension.’
[20]
Pinochet
No 2
[21]
held that ‘where the impartiality of a judge is in question the
appearance of the matter is as important as the reality.’
Thus,
‘
[it] is no answer
for the judge to say that he is in fact impartial, that he abided by
his judicial oath and there was a fair trial.
The administration of
justice must be preserved from any suspicion that a judge lacks
independence or that he is not impartial
.
If there are grounds which would be sufficient to create in the mind
of a reasonable man a doubt about the judge’s impartiality,
the
inevitable result is that the judge is disqualified from taking any
further part in the case
.
No further investigation is necessary, and any decisions he may have
made cannot stand.’
[22]
(emphasis added)
[29]
Article 2.5 of the Bangalore Principles of Judicial Conduct similarly
provides that
‘
A
judge shall disqualify himself or herself from participating in any
proceedings in which the judge is unable to decide the matter

impartially or in which
it
may appear to a reasonable observer
that the judge is unable to decide the matter impartially.’
(emphasis added)
[30]
Article 13 of our Code of
Judicial Conduct
[23]
not
surprisingly likewise requires that:
'A
judge must recuse him or herself from a case if there is a —
(a)
real or reasonably perceived conflict of interest; or
(b)
reasonable suspicion of bias based upon objective facts
, and
shall not recuse him or herself on insubstantial grounds.' (emphasis
added)
The
Code is essentially just a restatement of the law.
[31]
The present matter is not an instance where the first category of
actual bias is alleged.
Mr Zuma in his submissions expressly
disavowed any reliance on actual bias. I would have had no hesitation
had he not done so,
to reject any suggestion of actual bias on my
part. I have absolutely no interest in the future fortunes or
otherwise of Mr Zuma
and the outcome of his prosecution at all, other
than that the outcome thereof must be in accordance with legal
principles and
constitutionally fair. The issue, more correctly, is
purely whether there is a perception of a reasonable apprehension of
bias
arising from findings and views necessarily previously expressed
by me.
[32]
As regards an appearance
of bias, in
President
of the Republic of South Africa v South African Rugby Football
Union,
[24]
the Constitutional Court described the test as follows:
'[36] In the present case
counsel for the fourth respondent emphasised that his client did not
seek to rely on the presence of actual
bias on the part of any member
of this Court. Rather he relied on "the appearance of bias".
For a number of years there
has been controversy in the courts of
England and some Commonwealth countries as to the proper formulation
of the test to be applied
in recusal cases involving the appearance
of bias. There have been two contending formulations. One is the
presence of “a
real likelihood of bias” and the other “a
reasonable suspicion or apprehension of bias”. This subject was
canvassed
in some detail by Hoexter JA in
BTR Industries South
Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and
Another
. After a review of the authorities, the learned Judge
said:
“
. . . I conclude
that in our law the existence of a reasonable suspicion of bias
satisfies the test; and that an apprehension of
a real likelihood
that the decision maker will be biased is not a prerequisite for
disqualifying bias.”
[37] In the
BTR
judgment itself and in other South African and foreign judgments, the
formulation of the test for recusal on the ground of perceived
bias
has used the expression “apprehension of bias” as an
equivalent for “suspicion of bias”. Thus, the
following
passage from the
BTR
judgment:
“
The law does not
seek . . . to measure the amount of his [the judicial officer's]
interest. I venture to suggest that the matter
stands no differently
with regard to the apprehension of bias by a lay litigant. Provided
the suspicion of partiality is one which
might reasonably be
entertained by a lay litigant a reviewing Court cannot, so I
consider, be called upon to measure in a nice
balance the precise
extent of the apparent risk
.
If suspicion is reasonably apprehended, then that is an end to the
matter
.”
[38] In
In re Pinochet
Lord Browne-Wilkinson also regarded the terms as being synonymous. He
said:
“
As I have said,
Senator Pinochet does not allege that Lord Hoffmann was in fact
biased. The contention is that there was a real
danger or reasonable
apprehension or suspicion that Lord Hoffmann might have been biased,
that is to say it is alleged that there
is an appearance of bias not
actual bias.”
In
Livesey v The New South Wales Bar Association
the High Court
of Australia stated:
“
It was common
ground between the parties to the present appeal that the principle
to be applied in a case such as the present is
that laid down in the
majority judgment in
Reg
v Watson; Ex parte Armstrong
.
That principle is that a Judge should not sit to hear a case
if
in all the circumstances the parties or the public might entertain a
reasonable apprehension that he might not bring an impartial
and
unprejudiced mind to the resolution of the question involved in it
.
. . . Although statements of the principle commonly speak of
“suspicion of bias”, we prefer to avoid the use of that

phrase because it sometimes conveys unintended nuances of meaning.”
Because
of the inappropriate connotations which might flow from the use of
the word “suspicion” in this context, we
agree and share
this preference for “apprehension of bias” rather than
“suspicion of bias”. This is also
the manner in which the
Supreme Court of Canada formulates the test, where its use is in no
way inconsistent with the judgments
of the Supreme Court of Appeal in
BTR
or
Moch
.' (footnotes omitted, emphasis added)
[33]
In
President
of the Republic of South Africa v South African Rugby Football Union
reference
was made to the judgment of the Supreme Court of Canada in
R.
v. S. (R.D.)
[25]
where it was held that:
'117  Courts have
rightly recognized that there is a presumption that judges will carry
out their oath of office. See
R. v. Smith & Whiteway Fisheries
Ltd
.
(1994), 1994 NSCA 130
(CanLII), 133 N.S.R. (2d) 50 (C.A.),
and [
R. v. Lin
[1995] B.C.J.No. 982 (QL)]. This is one of the
reasons why the threshold for a successful allegation of perceived
judicial bias
is high. However, despite this high threshold,
the
presumption can be displaced with “cogent evidence” that
demonstrates that something the judge has done gives rise
to a
reasonable apprehension of bias.
See
Smith & Whiteway
,
supra
, at para. 64;
Lin
,
supra
, at para. 37. The
presumption of judicial integrity can never relieve a judge from the
sworn duty to be impartial.
118   It is
right and proper that judges be held to the highest standards of
impartiality since they will have to determine
the most fundamentally
important rights of the parties appearing before them. This is true
whether the legal dispute arises between
citizen and citizen or
between the citizen and the state.
Every comment that a judge
makes from the bench is weighed and evaluated by the community as
well as the parties
.
Judges must be conscious of this constant
weighing and make every effort to achieve neutrality and fairness
in carrying out their duties. This must be a cardinal rule of
judicial conduct.' (emphasis added)
[34]
Previous decisions are
helpful to demonstrate the application of the principle, but
ultimately, every case turns on its own facts.
The test and
characteristics of the reasonable observer have to be applied to the
specific factual situations
[26]
in each case. The circumstances in which recusal should follow,
judging on recent developments, are far from being exhausted, and

hence the instances of possible recusal by far do not constitute a
numerus
clausus
(closed
list).
[27]
[35]
Howie JA contextualised
the test in
Gaetsaloe
v Debswana Diamond Co (Pty) Ltd,
[28]
as being:
‘
. . . an objective
one. Actual bias need not be shown, merely apprehended bias. After
citing Canadian authority, the South African
Constitutional Court, in
President
of the Republic of South Africa v South African Rugby Football Union
explained that the test contains a two – fold objective
element. The person considering the alleged bias must be reasonable

and the apprehension of bias must itself be reasonable in the
circumstances of the case.’ (footnotes omitted)
Concisely,
a litigant must show
[29]
that
a 'reasonable, objective and informed person would, on the correct
facts, reasonably apprehend bias'.
[30]
[36]
The perception
(appearance or apprehension) of bias is as important as actual
bias.
[31]
This is because ‘it
is of fundamental importance that justice should not only be done,
but should manifestly ... be seen
to be done... Nothing is to be done
which creates a suspicion that there has been an improper
interference with the course of justice.’
[32]
In line herewith, the Constitutional Court has held that ‘[nothing]
is more likely to impair confidence ... in proceedings,
whether on
the part of litigants or the general public, than actual bias or the
appearance of bias in the official who has the
power to adjudicate
disputes.’
[33]
[37]
Bernert v Absa Bank
Ltd
[34]
sets out the following useful backdrop for the overall discussion
regarding a perception of bias:
'This case concerns the
apprehension of bias. The apprehension of bias may arise either from
the association or interest that the
judicial officer has in one of
the litigants before the court or from the interest that the judicial
officer has in the outcome
of the case
. Or it may arise from the
conduct or utterances by a judicial officer prior to or during
proceedings. In all these situations,
the judicial officer must
ordinarily recuse himself or herself
. The apprehension of bias
principle reflects the fundamental principle of our Constitution that
courts must be independent and
impartial. And fundamental to our
judicial system is that courts must not only be independent and
impartial, but they must be seen
to be independent and impartial.'
(footnotes omitted, emphasis added)
[38]
More recently Khampepe J
in
South
African Human Rights Commission obo South African Jewish Board of
Deputies v Masuku
[35]
in a different context set out the considerations to be taken into
account in instances of an alleged perception of bias, as follows:
'[64] . . . The
application of the test requires both that the apprehension of bias
be that of a reasonable person
in the position of the litigant
and that it be based on reasonable grounds. This test must, thus, be
applied to the true facts on which the recusal application
is based.
[65] . . .
[66] The question of what
will give rise to a “reasonable apprehension of bias”
requires some interrogation. This test
does not mean that any Judge
who holds certain social, political or religious views will
necessarily be biased in respect of certain
matters, nor does it
naturally follow that, where a Judge is known to hold certain views,
they will not be capable of applying
their minds to a particular
matter. The question is whether they can bring their mind to bear on
a case with impartiality. To do
so plainly does not require a Judge
to absolve himself or herself of his or her human condition and
experience. As Cardozo J put
it: “absolute neutrality on the
part of a Judicial Officer can hardly if ever be achieved” for—
“
[t]here is in each
of us a stream of tendency, whether you choose to call it philosophy
or not, which gives coherence and direction
to thought and action.
Judges cannot escape that current any more than other mortals. All
their lives, forces which they do not
recognise and cannot name, have
been tugging at them – inherited instincts, traditional
beliefs, acquired convictions; and
the resultant is an outlook on
life, a conception of social needs . . . . In this mental background
every problem finds it[s] setting.
We may try to see things as
objectively as we please. Nonetheless, we can never see them with any
eyes except our own.
. . .
Deep below consciousness
are other forces, the likes and the dislikes, the predilections and
the prejudices, the complex of instincts
and emotions and habits and
convictions, which make the [person], whether [she or he] be litigant
or Judge.”
[67] It is true that a
Judge does not exist in a vacuum. In fulfilling his or her
adjudicative function, he or she brings personal
and professional
experiences and, what is more, “it is appropriate for Judges to
bring their own life experience to the adjudication
process”.
This Court has said that in “a multicultural, multilingual and
multiracial country such as South Africa,
it cannot reasonably be
expected that Judicial Officers should share all the views and even
the prejudices of those persons who
appear before them”.
[68] What an applicant
raising
an apprehension of bias must prove
is
that there is
some connection between the views, opinions or experiences of a
Judicial Officer and the subject matter they are to
be seized with
.
So, proving that a Judicial Officer holds a particular view is not,
without more, sufficient to establish a reasonable apprehension
of
bias.' (footnotes omitted, emphasis added)
[39]
In
M
J Vermeulen Inc. v Engelbrecht No
[36]
the court, quoting with approval from the Namibian High Court
judgment of
S
v Boois
,
[37]
held as follows:
‘
[7] In my
respectful opinion, the court in
Boois
summed up the pertinent principles correctly when, with reference to
the Constitutional Court’s judgment in
The
President of the Republic of South Africa v South African Rugby Union
and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 48, it held (at para
28-30):
“
[28] . . . And
importantly, the decision to recuse oneself
mero
motu
,
must not only be viewed from the subjective position of the judicial
officer concerned. There is an important objective assessment
that
must be carried out and the test in this regard appears to some
extent to be a tapestry of both objective and subjective elements.
[29] In this regard, the
court, in the
SARFU
judgment said the following at page 177D:
“
At the same time,
it must never be forgotten that than an impartial Judge is a
fundamental prerequisite for a fair trial and
a
judicial officer should not hesitate to recuse herself or himself if
there are reasonable grounds on the part of a litigant for

apprehending that the judicial officer, for whatever reasons, was not
or will not be impartial.”
It
would appear to me that the same applies in cases where judicial
officers decide
suo motu
to recuse themselves. There must be
an objectively reasonable basis in law for doing so, quite apart from
the judicial officer's
subjective and sometimes parochial views and
feelings.
[30] If it were
otherwise, judicial officers would recuse themselves from hearing
matters in respect of which they have some personal
aversion, fear or
foreboding, under the ruse of subjective reasons which may not be
subjected to objective standards of scrutiny
and this may yield the
administration of justice and the esteem and dignity of the courts a
shattering blow in the minds of the
public. In that way, judicial
officers may circumvent their duty to sit even in appropriate cases
by employing the simple stratagem
of recusing themselves
suo motu
for personal reasons when no objective or reasonable basis for so
doing exists in law, logic or even common sense. Willy-nilly
recusal
on
mero motu
bases is therefore a practice that we should, as
judicial officers, steer clear from like a plague, understanding as
we should,
that in light of our judicial oaths of office, we have a
duty to sit, unless a proper case for recusal is evident or justly
apprehended.”
[8] With respect, the
expression of the principles rehearsed in
Boois
case might
have been assisted by a fuller quotation from paragraph 48 of the
SARFU
judgment, for immediately before the passage from
SARFU
quoted in para 29 of
Boois
, the Constitutional Court stated:
“
The question is
whether a reasonable, objective and informed person would on the
correct facts reasonably apprehend that the Judge
has not or will not
bring an impartial mind to bear on the adjudication of the case, that
is a mind open to persuasion by the evidence
and the submissions of
counsel. The reasonableness of the apprehension must be assessed in
the light of the oath of office taken
by the Judges to administer
justice without fear or favour; and their ability to carry out that
oath by reason of their training
and experience. It must be assumed
that they can disabuse their minds of any irrelevant personal beliefs
or predispositions.
They
must take into account the fact that they have a duty to sit in any
case in which they are not obliged to recuse themselves
.”
The underlined sentence
neatly expresses the point that is applicable in the current matter.
The Constitutional Court’s judgment
in
SARFU
was
concerned with the circumstances in which judges of that court might
recuse themselves, but the principles enunciated in para
48 of the
judgment are applicable to judicial officers at every level of the
judiciary; they have a duty to try the cases allocated
to them
unless
there is some principled basis for them to decline to do so
.'
(footnotes omitted, the underlining appears in the original, the
italicized emphasis is added)
[40]
Irvine J from the Irish
Appeal Court when applying the test noted that:
[38]
'[it] is important next
to consider the relevant facts which ought to be imputed to the
reasonable, objective, informed and fair-minded
observer when
considering the submission based upon objective bias.'
[41]
The United Kingdom
Employment Appeal Tribunal in
Higgs
v Farmor's School
[39]
held that:
'In considering whether a
judge or lay member who has been assigned to hear a particular case
should be recused on the ground of
apparent bias, the issue must be
resolved by applying an objective test: it is the perspective of the
fair-minded and informed
observer that is relevant and thus neither
the subjective view of the person alleging possible bias, nor the
assertions of the
person of whom potential bias is alleged, are
likely to be particularly helpful. . .The threshold for recusal is,
however,
whether the fair-minded and informed observer would
conclude there was a “real possibility”, not whether they
would
conclude there was a “probability”; that means that
if there is real ground for doubt, it should be resolved in favour
of
recusal.
. .' (references omitted, emphasis added)
[42]
The Constitutional Court
in
SACCAWU
v Irvin & Johnson Limited
emphasised
that the test has two parts:
[40]
'The Court in
Sarfu
further alluded to the apparently double requirement of
reasonableness that the application of the test imports. Not only
must
the person apprehending bias be a reasonable person, but the
apprehension itself must in the circumstances be reasonable. This
two-fold aspect finds reflection also in
S v Roberts
, decided
shortly after
Sarfu
, where the Supreme Court of Appeal
required both that the apprehension be that of the reasonable person
in the position of the
litigant and that it be based on reasonable
grounds.'
[43]
In
S
v Basson
[41]
the Constitutional Court highlighted that the perception of the
judicial officer’s impartiality is crucial to the
administration
of justice. A perceived lack of impartiality
constituting a reasonable apprehension of bias is occasioned where a
judge, during
the course of a trial, prejudges a live issue pertinent
to the defence of an accused.
[42]
‘
It must follow
that a recusal challenge also involves a virtually identical inquiry,
namely “the social judgment of the Court”
applying
“common morality and common sense” in deciding whether
the reasonable person, in possession of all the relevant
facts, would
reasonably have apprehended that the trial Judge would not be
impartial in his adjudication of the case.’
[43]
[44]
The presiding judge in
S
v Dawid
[44]
had previously made an
adverse finding on the credibility of the accused as a witness in
another case. Although he concluded that
there would be no truth in
the allegation that there had been actual bias on his part against
the accused, he concluded that he
was not convinced that the accused
would not harbour a reasonable fear, owing to the earlier finding,
that he would not be perceived
to be biased in favour of finding that
the accused's evidence in the trial before him should likewise be
rejected. He accordingly
recused himself from hearing the case. That
is because:
‘
it is no answer
for the judge to say that he is in fact impartial, that he abided by
his judicial oath and there was a fair trial.
The
administration of justice must be preserved from any suspicion that a
judge lacks independence or that he is impartial
.
If there are grounds sufficient to create in the mind of the
reasonable man a doubt about the judge's impartiality, the inevitable

result is that the judge is disqualified from taking any further part
in the case. No further investigation is necessary, and any
decisions
he may have made cannot stand.’
[45]
(emphasis added).
[45]
In
R
v Barnsley County Borough Licensing Justices, Ex parte Barnsley &
District Licensed Victuallers’ Association
[46]
Devlin LJ, in a concurring judgment, remarked:
‘
Bias
is or may be an unconscious thing and a man may say that he was not
actually biased and did not allow his interest to affect
his mind,
although, nevertheless, he may have allowed it unconsciously to do
so. The matter must be determined upon the probabilities
to be
inferred from the circumstances in which the justices sit.’
[47]
As
it has been explained:
‘
Of the three
justifications for the objective standard of reasonable apprehension
of bias, the last is the most demanding for the
judicial system,
because it countenances the possibility that justice might not be
seen to be done, even where it is undoubtedly
done – that is,
it envisions the possibility that a decision-maker may be totally
impartial in circumstances which nevertheless
create a reasonable
apprehension of bias, requiring his or her disqualification. But,
even where the principle is understood in
these terms, the criterion
of disqualification still goes to the judge’s state of mind,
albeit viewed from the objective
perspective of the reasonable
person. The reasonable person is asked to imagine the
decision-maker’s state of mind, under
the circumstances.'
[48]
[46]
Ex parte Goosen
[49]
held with regards to the application of the test for recusal that:
'it is self-evident that
the fate of a recusal application depends on the totality of the
relevant facts in a given case. This means
that the person who is
"reasonably" aggrieved by the presence of a particular
judge would also have to have been “properly
informed” as
to the relevant facts and take an objective view of those facts.'
[47]
The Constitutional Court
applying the test for recusal in
South
African Human Rights Commission obo South African Jewish Board of
Deputies v Masuku
[50]
added the following:
'At its heart is the
question of whether Mr Masuku’s statements constitute hate
speech in terms of the Equality Act. What
this involves is an
interpretative exercise to ascertain the meaning, target group, and
impact of the impugned statements. What
it does not involve is any
kind of moral assessment of the spoken words, nor does it require
this Court to comment on the truth
or value of the statements, or
render an opinion on their contents. It simply demands that we apply
our minds to the objective
determination of whether the Equality
Court correctly concluded that the statements constitute hate speech.
We emphasise this,
because the matter’s connection to the
conflict in the Middle East is a red herring. The fact that any or
all members of
the Bench may hold opinions, even strong opinions, on
this conflict is of no moment to our ability to determine whether the
impugned
statements constitute hate speech. For now, this is all that
needs to be said on that, and we turn to assess whether the
respondents
have met the test for recusal.
. . .
The issue of recusal must
be determined by taking stock of the objective facts, which can
hardly be said to be found in the pages
of the press. We have already
determined and discussed the objective facts that are relevant to
this recusal application, and are
aware of no reason why anything in
the media should have any bearing on this enquiry. We could very
easily find ourselves going
down a treacherous rabbit hole if the
media were to guide our objective assessment of facts in cases that
seize us.'
[48]
The enquiry is a very
serious one and it must be addressed properly. Apart from the impact
on an accused, ‘[a]n accusation
of bias, however frivolous, if
not dispelled, may tarnish the judicial officer concerned and corrode
public confidence in the judiciary
as a whole.’
[51]
[49]
Ultimately, reasons must
be provided for the recusal, clearly expressing the doubts a
presiding judge has in continuing with the
case. In the final
analysis, the value judgement of the court, applying common morality
and sense dictates the answer.
[52]
The question is whether the alleged manifestations of bias viewed,
either singly or collectively, would give rise to a reasonable

apprehension of bias on the part of a reasonable objective and
informed person.
[53]
Factors
raised, if considered individually, might not in and of themselves,
be a sufficient indication that a litigant would not
be perceived to
have a fair hearing, but taken cumulatively the complaint that it is
reasonably apprehended that the judge will
not bring an open and
impartial mind to bear on the adjudication of the matter, might be
justified.
[54]
The
issues arising for decision or reasonably anticipated to arise
[50]
As alluded to earlier, at a bare minimum, the following questions
have arisen, or are reasonably
anticipated to arise for determination
in the trial of Mr Zuma:
(a)
Whether Mr Downer should remain as prosecutor, or whether he should
be removed as prosecutor,
whether
mero motu
or otherwise; and
(b)
The ongoing issue whether
Mr Zuma receives, or will have received, a constitutionally fair
trial.
[55]
Foundational
to these two questions, is the private prosecution of Mr Downer and
the other grounds of complaint previously raised
by Mr Zuma in the
special plea proceedings. The issue of him remaining as prosecutor is
inextricably linked to the merits of the
private prosecution,
specifically, the merits of the criminal charges giving rise thereto,
which include: whether there was a leaking
of medical information;
whether the information was confidential; whether it was illegal to
do so; whether the provisions of the
NPA Act were contravened;
whether even if not illegal and insufficient to result in a
successful conviction, whether Mr Zuma’s
rights to a
constitutionally fair trial would be affected.
As
regards the second question specifically, the issue whether an
accused receives a constitutionally fair trial as guaranteed in
terms
of the Constitution is an important enquiry and something that should
be ever present to a judge’s mind during a trial.
In answering
the question whether Mr Zuma receives a fair trial, the issues
arising in relation to the private prosecution will
also arise. In
addition, the factual premise underlying each of the 14 grounds of
complaint previously raised by Mr Zuma when advancing
his case in
relation to the special plea, will reasonably arise.
[51]
I turn to consider these issues in turn.
The
private prosecution
The
alleged leaking of confidential medical information
[52]
During argument before me on the special plea, at the end of his
reply, Mr Mpofu SC, representing
Mr Zuma, sought an order:
‘
3. Referring the
matter of alleged breaches of Section 41(6), read with Section
41(7),
[56]
of the National
Prosecuting Act 32 of 1998 to the National Director of Public
Prosecutions and the Legal Practice Council for further
investigation
and appropriate action.’
This
complaint was based on the alleged disclosure of confidential medical
information of Mr Zuma to Ms Maughan, a journalist. In
refusing that
request I expressed doubt whether the wide terms of s 41(6) of the
NPA Act were necessarily constitutional and/or
would necessarily find
application on the facts of this matter.
[53]
I concluded,
prima facie
, that it would not be unlawful for a
prosecutor to deal with enquiries from the press, to ensure that the
public is properly informed
of the work of the NPA. This could
include, for example, progress made in prosecutions, which inevitably
will result in the disclosure
of information which comes to the
knowledge of prosecutors in the performance of their functions and
duties in terms of the NPA
Act, or any other law. Although I
described some of these views as ruminations without the benefit of
having heard considered argument,
they were nevertheless views held
and seriously expressed.
[54]
The circumstances, as placed before me and interpreted by me, in
which the medical information
came to be disclosed, allegedly
unlawfully, very briefly summarized, included the following:
(a)
I had issued a directive that any application for a further
adjournment of the trial was
required to be ‘supported by an
affidavit by a medical practitioner treating Mr Zuma.’
(b)
Mr Zuma was due to appear
in court again on Tuesday, 10 August 2021.
[57]
As he was being detained at the Estcourt Correctional Centre, he was
requisitioned by the NPA.
(c)
On Friday 6 August 2021 the Head of the Estcourt Correctional Centre,
Ms Radebe, sent a
WhatsApp message to Ms Naicker of the NPA. The
message recorded that Mr Zuma had been ‘referred to [an]
outside hospital
due to his medical condition last night.’ Ms
Naicker thereupon enquired from Ms Radebe whether she was able to
give any indication
as to whether Mr Zuma would be brought to court
as per the requisition for his attendance on 10 August 2021. In
answer to a request
for documentation in substantiation of his
condition Ms Radebe’s responded that she was awaiting documents
with that information.
(d)
On Sunday 8 August 2021 at 14h24 Ms Naicker, the Director of Public
Prosecutions KZN (Ms
Zungu), and Mr Downer received an email from Ms
Radebe. Attached to the email was a letter from Brigadier General
(Dr) M.Z. Mdutywa,
General Officer Commanding Area Military Health
Formation (Dr Mdutywa), officially date stamped 8 August 2021,
addressed to the
‘Head of the Centre, Estcourt Correctional
Centre, Department of Correctional Services, Estcourt’, where
Mr Zuma was
at the time incarcerated. The letter recorded, inter
alia, that: ‘[o]n 28 November 2020, [Mr Zuma] was put under
active care
and support after he suffered a traumatic injury’;
that he ‘needed an extensive emergency procedure that has been
delayed
for 18 months due to compounding legal matters and recent
incarceration and cannot be delayed any further as it carries a
significant
risk to his life’; and that the ‘minimum
proposed period of care is six months.’
(e)
On 9 August 2021 Mr Downer addressed an email to my Registrar
advising that following the
hospitalisation of Mr Zuma the State and
the legal representatives of Mr Zuma had been separately informed by
the Department of
Correctional Services and Military Health Services
that he remained admitted in an outside health facility. Mr Downer
recorded
that he was ‘busy making an affidavit that explains
the sequence of events that have led to this approach for a new
directive.’
(f)
At 11h46 on 9 August 2021 Mr Downer sent a second email to my
Registrar, copied to
Mr Thusini, to which he attached an unsigned
copy of the affidavit he said he would provide, including the
annexures thereto, which
included the letter of Dr Mdutywa. It seems
that it was this draft affidavit with annexures that were made
available to Ms Maughan.
Mr Downer filed his signed affidavit headed
‘The States Affidavit regarding the Postponement of the
Proceedings on 10 August
2021’ with the letter from Dr Mdutywa
attached thereto, with the Registrar of this court on 10 August 2021.
The sequence
of events and circumstances resulting in unsigned copies
of the affidavits of Mr Downer and Ms Naicker being made available to
Ms Maughan were explained in Mr Downer’s answering affidavit;
(g)
The application by Mr Zuma for the postponement of the trial on 10
August 2021 was emailed
on 9 August 2021 at 21h08 by Mr Thusini to my
Registrar, Mr Downer, and to the second accused’s attorneys.
The application
was filed with the Registrar of this Court on the
morning of 10 August 2021. The application consisted of an affidavit
by Mr Zuma’s
attorney, Mr Thusini, and a confirmatory affidavit
by Dr Mdutywa. Mr Downer’s signed affidavit was also filed that
morning.
The affidavit of Mr Thusini to which Dr Mdutywa’s
letter of 8 August 2021 was annexed, was commissioned before a
practicing
attorney in Vryheid on 9 August 2021. The confirmatory
affidavit of Dr Mdutywa, confirmed the contents of Mr Thusini’s
affidavit.
Dr Mdutwa’s affidavit was attested before a
Commissioner of Oaths with the Military Police, on 8 August 2021,
being
ex facie
the affidavit, the date of its signature. The
official date stamp of the Military Police appended to the affidavit
also reflects
the date as ’08-08-2021’. Although Mr
Thusini’s affidavit did not yet exist in commissioned form on 8
August
2021, I concluded: that there had been no suggestion that
Brigadier General (Dr) Mdutywa on 8 August 2021 was confirming the
contents
of an ‘affidavit’ other than the, at that stage,
still unsigned affidavit of Mr Thusini, which was signed and attested

the next day on 9 August 2021; that as a Brigadier General in the
South African National Defence Force he would not sign a confirmatory

affidavit confirming the contents of a non-existent affidavit; that
as irregular as the sequence of signing the affidavits may
be, that
Dr Mdutywa intended to confirm the unsigned draft of the ‘affidavit’
of Mr Thusini to which his letter would
be an annexure; and, that
there would be no purpose in Dr Mdutywa confirming the contents of
the ‘affidavit’ of Mr
Thusini other than to confirm the
correctness of the contents, that is the medical aspects it
contained, specifically his letter
of 8 August 2021 addressed to the
Correctional Services facility at Estcourt.
[55]
I made a number of firm findings and expressed a number of views
regarding the above. These
included inter alia that:
(a)
I disagreed with Mr Mpofu submission from the bar that the date of
attestation of the confirmatory
affidavit of Dr Mdutywa, was simply
an ‘error.’
(b)
I concluded that the
intention clearly was that Dr Mdutywa’s letter of 8 August 2021
was to be used in support of the application
for a postponement,
pursuant to the terms of my directive, which would mean that it would
become public when filed.
[58]
(c)
I concluded that the aforesaid conduct would be inconsistent with Mr
Zuma’s protestations
that the letter was a confidential
document.
(d)
I did not consider the information conveyed in the letter to be
confidential, worthy of
protection, alternatively and in any event,
that the letter had been sent to the Department of Correctional
Services and by that
Department to the National Prosecuting Authority
and was to be filed in court as part of Mr Zuma’s application,
hence that
any confidence which might have attached thereto had been
waived. That would be notwithstanding the term ‘Medical
Confidential’
appearing thereon as Mr. Zuma’s lawyers
failed to claim any such confidentiality when filing this letter in
court as part
of his papers, and did not redact any parts thereof.
(e)
I expressed the view that the letter had furthermore been disclosed
to Mr Downer, Ms Naicker
and the DPP of KwaZulu-Natal, without any
specific restrictions as regards confidentiality, by the Head of the
Correctional Centre
at Estcourt on 8 August 2021.
(f)
In my view the letter did not contain anything materially
confidential.
(g)
Further, I described the letter of Dr Mdutywa to be vague and general
in its terms, and
that it did not disclose any particularity and did
not mention the specific medical condition or illness Mr Zuma is
alleged to
suffer from, which could be said to constitute a violation
of Mr Zuma’s rights to privacy, given the purpose for which the

letter was tendered.
(h)
I agreed with Mr Downer’s description that the letter contained
‘vague generalities.’
(i)
I confirmed that the
right to privacy, like most fundamental rights, is not an absolute
right and is subject to limitations, having
regard to what is
reasonable and justifiable in an open and democratic society, based
on human dignity, equality and freedom.
[59]
Competing rights and interests must also be considered. In the
context of this trial I expressed the view that it was not only
Mr
Zuma’s right to privacy that is at stake. There are also the
rights of members of the public, the proper administration
of justice
and the interests of justice generally, which must be considered in a
prosecution where the medical condition of the
accused has become an
issue.
(j)
I said in the
alternative, that the disclosure of the letter might, at best, amount
to an irregularity, but that it was not an irregularity
which would
result in a failure of justice and an unfair trial.
[60]
(k)
I accordingly concluded
that any such disclosure did not deprive Mr Downer of the title to
prosecute and/or, significantly for present
purposes, that he should
be removed as a prosecutor, even if the test was a wider one.
[61]
(l)
Finally, I concluded generally in regard to all the grounds that on
the evidence
before me it had not been shown that Mr Zuma’s
rights to a constitutionally fair trial had been impaired, or that
there is
a real possibility that his rights will be impaired.’
The
issues arising from the private prosecution
[56]
Private prosecutions can
fulfil an important role. In
Nundalal
v Director of Public Prosecutions
KZN
,
[62]
it was held that:
‘
[a] person whose
feelings and good name are injured has the right to prosecute
privately if he actually suffers an injury
[63]
[and that] a decision to
deny a private prosecutor the right to prosecute should be taken
cautiously not least because it implicates
the right to access to the
court under s 34 of the Constitution. If he meets all the
requirements for a private prosecution under
the CPA and the right to
prosecute is not hit by the limitation in s 36, the private
prosecution should be allowed to proceed.’
[64]
Indeed,
the Constitutional Court has observed that:
‘
It may be argued
that the private prosecutor is not vindicating a private right, but
is invoking the power of the State to punish
crime.
Sections 12
and
13
of the
Criminal Procedure Act 51 of 1977
reflect the State’s
continuing interest in a private prosecution.’
[65]
[57]
The fact that the private prosecution of Mr Downer has now commenced
features predominantly,
although not exclusively, in Mr Zuma’s
submissions as the basis for seeking my recusal. As I consider the
circumstances relating
to the private prosecution to be largely
dispositive of the issue of my recusal, I shall focus thereon, and
shall, in the interest
of brevity, deal with the other considerations
advanced only briefly, especially as I am not persuaded that on their
own, these
other considerations would necessarily have demanded my
recusal. I have had regard to the sum total of all the submissions
advanced.
[58]
In regard to the pending private prosecution Mr Zuma submits inter
alia that:
(a)
his life and freedom are at stake;
(b)
that he is equally entitled to scrutinise Mr Downer’s position
constitutionally, professionally
and ethically, to determine when a
conflict of interest or a violation of the Constitution exists;
(c)
it is constitutionally unacceptable for a court to allow Mr Downer to
continue as the lead
prosecutor in his prosecution while he is at the
same time facing criminal charges in the private prosecution
initiated at his
(Mr Zuma’s) behest;
(d)
this court has supervisory powers which it must exercise, to prevent
such a situation developing;
(e)
this court should remove Mr Downer as prosecutor of its own volition
;
(f)
the notion that a prosecutor, who is the subject of a private
prosecution initiated
by an accused in parallel criminal proceedings,
could continue as ‘lead prosecutor’ in a criminal case
against his
‘private prosecutor,’ is rife with a
multitude of risks and may bring the entire criminal justice system
into disrepute;
(g)
a prosecutor’s lack of disinterest may constitute a
per se
violation of due process
,
and a systemic error, but that it,
in any event, indicates a conflict of interest. He submits further
that a conflict of interest
has been held to arise where a prosecutor
has acquired a personal interest or stake in the conviction of an
accused;
(h)
in the current situation,
the trial court must exercise its discretion in granting a motion to
disqualify the prosecutor and the
accused would be entitled to a new
trial, even without prejudice being established - just as it would be
a violation of the Constitution
he says, for a judge who is facing a
lawsuit by one of the parties to continue presiding over a case
involving one of his opponents;
[66]
(i)
it would be a grave constitutional violation and a mockery of the
judicial system
for a lead prosecutor who is facing a private
prosecution by the accused to continue his participation in the trial
of the extant
case;
(j)
I had expressed, directly
or indirectly, an opinion about the merits of ’the underlying
private prosecution against Mr Downer;
[67]
(k)
this has serious implications for any current and future applications
for Mr Downer’s
disqualification from the extant prosecution;
(l)
it would be difficult for
him to receive a fair and impartial trial before me, and that it
would be a grave error for me not to
recuse myself;
[68]
(m)
I expressed some doubt whether the wide terms of s 41(6) are
necessarily constitutional and/or would
necessarily find application
on the facts of this matter, whether it would be unlawful for a
prosecutor to deal with enquiries
from the press, to ensure that the
public is properly informed, which he submits means that I had
clearly expressed a view on the
merits of any envisaged private
prosecution of Mr Downer and any related application for his
disqualification on the basis of the
allegations related to the
violation of s 41(6) of the NPA Act;
(n)
when I expressed myself strongly on the merits on issues now likely
to be raised in the
extant proceedings, a perception is created in
the mind of a reasonable person that I thought Mr Downer was innocent
of the crimes
with which he has now been charged;
(o)
Both Mr Downer and Ms
Maughan have since, and according to Mr Zuma ‘quite
predictably’ invoked my utterances to challenge
the lawfulness
of the private prosecution in their respective applications which are
pending before this court.
[69]
This he contends places my remarks at the centre of the disputed
issues in the prosecution, that I am ‘almost in the position
of
an expert witness . . . (and that) . . . it is irrelevant that the
prima
facie
views
expressed . . . pointed to the innocence of Mr Downer, because even
if I had alluded to [Mr Downer’s] guilt the effect
would have
been the same – I had expressed a view, one way or the other,
and that is which is objectionable, not necessarily
the content of
that view.’
(p)
Mr Downer suffers from a
disabling conflict, because as respondent in a private prosecution he
cannot as the lead prosecutor assigned
to Mr Zuma’s case,
‘exercise, carry out or perform their powers, duties and
functions in good faith, impartially and
without fear, favour or
prejudice,’ because he has a personal stake in the outcome of
the private prosecution and may be
tempted to be vindictive and
spiteful in dealing with Mr. Zuma.’ In this regard Mr Zuma
relies on s 179 of the Constitution
and what was said in
Young
v. United States ex rel. Vuitton
:
[70]
‘
Between the
private life of the citizen and the public glare of criminal
accusation stands the prosecutor. That state official has
the power
to employ the full machinery of the state in scrutinizing any given
individual. Even if a defendant is ultimately acquitted,
forced
immersion in criminal investigation and adjudication is a wrenching
disruption of everyday life. For this reason, we must
have assurance
that those who wield this power will be guided solely by their sense
of public responsibility’.
[71]
A prosecutor’s lack
of ‘disinterestedness’ is a disqualifying factor and a
prosecutor who persists in prosecuting
a case where he is conflicted
or has a personal stake is subject to challenge by an accused. Mr
Zuma relies on
Smyth
v Ushewokunze
[72]
where the court condemned a prosecutor who had displayed a vindictive
and biased attitude to the accused during investigation and
remand
proceedings had ‘
involved
himself in a personal crusade
’
against
the accused and lacked the objectivity, detachment and impartiality
necessary to ensure that the State's case was presented
fairly.
Discussion
[59]
It is undoubtedly so, as Mr Zuma submits, that irrespective of the
outcome of the private
prosecution, the fact that Mr Downer is being
(or was), privately prosecuted, will require a determination of the
question whether
he should remain as prosecutor, whether that issue
is raised
mero motu
, or otherwise. The answer to that question
will not only be objectively important to an accused person in the
position of Mr Zuma,
but will also reasonably affect the public
confidence in the judiciary, the NPA and the general administration
of justice.
[60]
The mere fact that a
private prosecution is being pursued against a prosecutor in a
pending trial, is a matter of considerable concern,
and might
suggest, perhaps even strongly suggest, that he should be removed as
prosecutor. But it is not
per
se,
in
my respectful view, necessarily conclusive on the issue of his
removal. Often it might mean that the prosecutor might not be
able to
continue acting as such. But it does not necessarily mean that the
prosecutor is therefore ‘
involved
. . .in a personal crusade
’
against
the accused and must therefore, in all instances, be disqualified
from continuing as prosecutor. Even in
Smyth
v Ushewokunze
,
[73]
it was only after assessing and evaluating the evidence, that the
court concluded that the prosecutor's behaviour had fallen far
short
of the customary standards of fairness and detachment demanded of a
prosecutor. Such a weighing up of all the relevant considerations

will also be the correct approach in the present matter. Every case
must depend on its own facts. The evidence and relevant
considerations
must be assessed properly and dispassionately and must
be perceived to have been objectively evaluated as such.
[61]
The choice of counsel is
a very important consideration to any litigant. The choice is no less
important, where an organ of state,
such as the NPA, institutes a
prosecution. The choice of a particular counsel may be vitally
important for a number of reasons.
These might include, for example,
that the prosecution is one of considerable complexity, that the
prosecutor has particular skills
or attributes to deal with the
particular type of prosecution, and/or that the prosecutor has
invaluable institutional knowledge
of the circumstances and facts
giving rise to the prosecution, which other prosecutors might not
have and cannot readily gain.
It is not necessary at this stage to
speculate on what might motivate the State to insist on Mr Downer
prosecuting in the trial,
but these, and other similar considerations
might become very important in weighing up whether Mr Downer should
be removed as prosecutor.
Whatever these considerations might be, it
simply requires to be noted that the State has consistently persisted
with its choice
of Mr Downer as lead prosecutor notwithstanding
various attacks on his title to prosecute, and the delays that have
necessarily
followed pursuant to the judgments and rulings given by
me, being taken on appeal. Had there been no such considerations
present,
then the NPA could long since have appointed an alternative
prosecutor. The preference for Mr Downer as prosecutor also seems to

be reinforced by the content of a public media statement
[74]
issued by the NPA on 6
September 2022 referred to by Mr Zuma which inter alia recorded that:
‘
The NPA and its
leadership fully support Adv Downer as we believe that these charges
are without merit. They are only designed to
intimidate him in the
prosecution of Mr Zuma, and to further delay the trial. The private
prosecution amounts to abuse of process.
Adv Downer will continue
to lead the NPA’s prosecution team in the Zuma/Thales trial. He
has the NPA leadership’s full
confidence. His track record of
prosecutorial integrity and professionalism speaks for itself.
As much as the NPA will
allow the law to take its course, we recognise the imperative of
protecting our prosecutors from unjustified
attacks and
intimidation.’
[62]
Historically, the
position of a prosecutor was not identical to defence counsel in
private practice in all respects. The position
of a prosecutor has
however changed in some respects in the light of constitutional
developments since the advent of our constitutional
democracy.
[75]
It is however accepted for the purposes of this judgment that the
responsibility of a public prosecutor differs from that of a
defence
advocate, at least in the respect that a prosecutor’s first and
foremost duty is to seek justice and not merely a
conviction.
[76]
[63]
A prosecutor is a constitutional officer duty bound by an oath of
office to prosecute cases.
Naturally, most will consider themselves
bound by their oath of office. One must proceed on the basis that
prosecutors will ordinarily,
and certainly as a matter of
probability, not act unlawfully and in deliberate breach of their
oath of office.
[64]
Furthermore, it is undoubtedly so that in a criminal prosecution, as
the liberty of an
accused is to be decided, constitutional concerns
are implicated in a more profound manner, than in civil cases.
[65]
It must also be recognized that a prosecutor does not have the luxury
of choosing the cases
in which he or she prosecutes, but is appointed
and assigned to cases in the discretion of a particular Director of
Public Prosecutions
and/or the NPA. He or she does not have a choice
in the matter. The NPA is an autonomous, professional body of counsel
prosecuting
criminal matters, just as private advocates are
professionals, inter alia defending persons charged with crimes.
[66]
The choice of counsel is obviously not an absolute right, otherwise
it may delay certain
trials, and have the effect of possibly
impairing or even defeating the due administration of justice. But
normally the choice
of specific counsel is accommodated as far as
reasonably possible in the best interest of the administration of
justice, with due
regard to all other relevant considerations –
and these considerations do not comprise a closed list. The trial of
Mr Zuma
has in fact been postponed in the past, on occasion
specifically, to accommodate the availability Mr Zuma’s chosen
counsel,
thus giving effect to that right to counsel of choice. The
preference for particular prosecuting counsel by the prosecuting
authority
should receive similar recognition.
[67]
At the level of a general discussion, an instance might arise in
criminal litigation where
unfounded criminal charges are brought by
an accused against a prosecutor. It might be highly desirable or even
crucial, that the
particular prosecutor be the designated appointed
prosecutor in that litigation. If the effect,
simpliciter,
of
instituting a private prosecution in each and every instance, as a
matter of course, even if the private prosecution was totally

unfounded, was that the prosecutor would be disqualified from
continuing as the prosecutor, then the State would be denied its

prosecutor of choice, as part of a strategy, rather than the bona
fide pursuit of a private prosecution of the prosecutor for crimes
he
or she allegedly committed, in the best interest of justice.
[68]
To avoid that situation, the circumstances and merits of any proposed
or actual private
prosecution, might need to be scrutinised very
closely together with all other relevant considerations, to determine
whether a
prosecutor should be removed as prosecutor in a particular
trial.
[69]
Our courts have the inherent power to regulate their own processes
and to stop any frivolous
or vexatious proceedings. Proceedings would
be vexatious, and an abuse of the court process if they are
unsustainable as a certainty.
An abuse of process has been held to be
where:
‘
. . . the process
is employed for some purpose other than the attainment of the claim
in the action. If the proceedings are merely
a stalking-horse to
coerce the defendant in some way entirely outside the ambit of the
legal claim upon which the Court is asked
to adjudicate they are
regarded as an abuse for this purpose.’
[77]
It would also be an abuse
of process, and/or pursuing a process for an ulterior purpose, where
the process pursued ultimately has
no prospect of success.
[78]
The Constitutional Court has held in
Mineral
Sands Resources (Pty) Ltd v Reddell
[79]
that ‘where there is gross abuse of the procedure employed by a
litigant’ the courts will dismiss the claim, ‘without
any
regard to the merits.’
[80]
[70]
Any potential future determination, and I verily believe it will
arise, as to whether the
private prosecution is pursued for an
ulterior purpose to achieve a situation where Mr Downer might or
should be removed as prosecutor,
is an abuse of the process of a
private prosecution, or whether it is genuine, will be inextricably
intertwined which the merits
of the subject matter of the private
prosecution. And on that I have certainly previously expressed
certain, Mr Zuma says ‘strong,’
findings and views, when
I found that the alleged contravention of the NPA Act and the other
grounds of misconduct he complained
of, were without merit.
[71]
The private prosecution having commenced, I do not in any way want to
be understood as
anticipating the outcome of the judgement of the
court hearing that trial, or the court dealing with objections raised
to the validity
of the private prosecution processes instituted
against Mr Downer and Ms Maughan. Regardless of what those courts
might find, the
objective facts are that I have expressed views
contrary to the argument advanced by Mr 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 Mr Downer should be removed,
mero motu
or
otherwise, from the criminal trial in which I preside. Those views
have also come to be relied upon as suggesting what the legal

consequences thereof should be. Mr Zuma refers to the following
extract, which he says is from the final paragraph of the sworn

police statement by Adv Breitenbach SC, alleged to be one of the
suspects and a key witness in the private prosecution of Mr Downer

and Ms Maughan, deposed to on 1 April 2022 at Grahamstown:
‘
I deny Mr Zuma’s
allegation that my sending of the papers to Ms Maughan on 9 and 10
August 2021 was in contravention of section
41(6) and (7) of the NPA
Act. In this regard, I refer to,
and
rely on, the reasoning
of Judge Koen in paragraphs 240 and 263 to 266 of his judgment dated
26 October 2021 on Mr Zuma’s special plea.’
Mr
Zuma submits that such reliance by Mr Breitenbach on this part of my
judgment alone is determinative of the question whether
I should
decide the issue whether or not it is professionally and ethically
appropriate for Mr Downer to continue as prosecutor
in the trial.
[72]
Any objective accused person in the position of Mr Zuma, reasonably
could not be expected
to be satisfied having a judge who has
expressed views and made findings regarding the alleged leaking of
his medical information
by the prosecutor, and whether these
constitute an infringement of his constitutional rights and a
contravention of s46(6) of the
NPA Act, deciding, based on those very
same facts, which had been dismissed as devoid of merit, whether the
integrity of the prosecutor
has, or has not been impaired to the
extent that he should be removed as prosecutor.
Other
previous findings
[73]
Other previous findings and comments made by me, that will assume
relevance, appear from
my previous judgments. They relate mainly to
the grounds which Mr Zuma had advanced in the special plea
proceedings before me.
Some of these are summarized very briefly
below. Their significance will be apparent from the terms of the
findings I had made,
and nothing further need to be said about them.
As mentioned before, I do not consider them, as regards my recusal,
as persuasive
as the factual events surrounding the alleged leaking
of the confidential medical information and the private prosecution
arising
therefrom. They do however involve findings made adverse to
Mr Zuma, which may collectively also contribute to an apprehension of

bias.
[74]
In the application for leave to appeal judgment, adverse to the
interests of Mr Zuma, I
inter alia found that:
(a)
Mr Zuma’s fourteen grounds of complaint had no valid
foundation;
(b)
Mr Zuma should not be granted leave in terms of s 316(5) of the CPA
to adduce further evidence
in respect of the prospective appeal
relating to his affidavit dated 21 October 2021 in support of the
criminal complaint against
Mr Downer, which he lodged with the South
African Police Service in Pietermaritzburg on that day, and which
sought to deal with
Mr Downer allegedly ‘unlawfully providing
information about the trial to persons who are not authorised to be
in possession
of that information’, as it had no merit;
(c)
That regarding the allegations that the prosecution team authorised
Prof Sarkin to send
his life partner to handle sensitive medical
information, that these allegations even if accepted, might at best
constitute irregularities,
but not irregularities affecting the
merits of the prosecution or, the fairness of the trial.
(d)
As regards Mr Zuma’s
application for a special entry of an irregularity in terms of s 317
of the CPA to be made, that
it should be rejected inter alia because
the objections raised by Mr Zuma were frivolous and absurd, and an
abuse of the process
of the court
[81]
having regard to the lack of prospects of success.
[82]
(e)
E
ven
to the extent that there might have been an irregularity or
illegality, the irregularity or illegality had not caused a failure

of justice, as provided in the proviso to s 322 of the CPA.
[83]
[75]
More significantly, for the purpose of this judgment, in the main
judgment, in dealing
with Mr Zuma’s alternative argument, I
expressed views that the fourteen grounds relied upon did not amount
to an irregularity,
or pointed to a lack of objectivity or
independence on the part of Mr Downer, which would justify his
removal as prosecutor.
[76]
The views I expressed will, reasonably be perceived to influence
findings, which I will
be required to make as to whether Mr Downer
should be removed as prosecutor, and/or in the future when the issue
whether Mr Zuma
receives or has received a constitutionally fair
trial, will arise for determination. In expressing that conclusion, I
am alive
to the fact that Mr Zuma’s application to appeal my
main judgment has been dismissed by the Constitutional Court, thus
possibly
indicating a tacit approval of the views I had expressed in
regard to these fourteen grounds. But this is not necessarily so, as

I indicated earlier. Detailed reasons for refusing the leave to
appeal were not provided, and leave to appeal was very likely refused

on the basis of accepting my narrow interpretation of s 106(1)(
h
),
rather than endorsing my finding that the fourteen grounds all lacked
merit. Reasonably construed, my findings indicate that
I have
favoured a particular interpretation of these factual issues, and
point to a reasonable and inevitable apprehension that
if they are
presented again, they will be decided by me in a similar manner.
[77]
These findings include inter alia the following:
(a)
In regard to Mr Zuma’s allegation that Mr Downer denounced the
refusal by Mr Ngcuka
to authorise searches of Mr Zuma’s
properties as a political favour to Mr Zuma, but that he failed to
report this ‘unlawful
conduct’ of Mr Ngcuka, or to lodge
a formal complaint about it, I found that Mr Zuma would not suffer
any trial prejudice.
(b)
In regard to Mr Zuma’s complaint that his constitutional rights
to a fair trial were
violated by Mr Ngcuka not charging him together
with Mr Shaik, and announcing publicly that although there was prima
facie evidence
of wrongdoing the case against him was unwinnable, I
concluded that there was no decision of Mr Downer that violated Mr
Zuma’s
rights, or conduct on Mr Downer’s part revealing
that he was not independent and impartial.
(c)
As regards Mr Zuma’s complaint that Mr Downer had a ‘dismissive
attitude’
towards the findings by the public protector who had
found that Mr Ngcuka had violated his (Mr Zuma’s) rights, I
concluded
that it was Mr Ngcuka’s statement which the public
protector had found to be offensive, that Mr Downer did not share the
view expressed by Mr Ngcuka in respect of the prosecution of Mr Zuma,
that there was nothing further that Mr Downer could have done,
and
accordingly that this ground did not point to any trial related
prejudice, nor that it showed that Mr Downer was not independent
and
objective.
(d)
Regarding Mr Zuma’s allegation that Mr Downer violated his
right to equality and equal
protection of the law and his fair trial
rights by presenting evidence in the
Shaik
trial, which
resulted in adverse findings by the presiding judge, against him, I
found that the findings of the trial court in
the
Shaik
prosecution were inevitable but did not elevate the leading of
evidence to secure the conviction of Mr Shaik and his companies
to a
deliberate strategy to treat Mr Zuma unfairly. It was what was
required of Mr Downer and he had not acted improperly in any
way in
the
Shaik
trial.
(e)
Regarding Mr Zuma’s
reliance on findings of political interference, which had been made
by Nicholson J in
Zuma
v National Director of Public Prosecutions
[84]
I found that there was no basis for any complaint against Mr Downer.
(f)
Regarding Mr Mpshe’s April 2009 decision to discontinue Mr
Zuma’s prosecution,
and Mr Downer allegedly knowing of the
conversations between Mr McCarthy and Mr Ngcuka in the run-up to the
ANC’s December
2007 elective conference, and the allegation
that Mr Downer was indifferent to them, I concluded that there was no
basis alleged
for such a conclusion, that it was entirely speculative
based on inadmissible hearsay evidence, and that the conversations
forming
the subject of the spy tapes, if correctly recorded and
authentic, in no way reflected adversely on Mr Downer, and, it was
not
for Mr Downer to take action separate from that which his
administrative head may have decided on.
(g)
Mr Zuma complained that Mr Downer filed an affidavit as ‘an
essential’ witness
in support of the application by the
Democratic Alliance (DA) application in the spy tapes matter and
sided with his political
opponents, the official opposition in the
South African legislature. I found that Mr Downer did not submit his
affidavit in support
of the DA, but at the request of Mr Hofmeyr
after he, Mr Downer, had refused to make an affidavit simply
confirming the contents
of Mr Hofmeyr’s affidavit. That I
concluded to me, spoke of Mr Downer’s independence of mind. I
concluded that Mr Zuma
had not shown that his fair trial rights had
been impeded in any way by the conduct of Mr Downer, or that he
should be removed
as prosecutor.
(h)
Regarding Mr Zuma’s complaint that information regarding his
prosecution was leaked
by the NPA to the media, specifically, that Mr
Downer disclosed information to a journalist, Mr Sam Sole of the
Mail
& Guardian
, I concluded that no confidential information
regarding Mr Zuma’s prosecution was leaked, and that Mr Downer
was not the
source for Mr Zuma being named in the media.
(i)
Mr Zuma has complained that Mr Downer has pursued his prosecution
with ‘unrestrained
gusto’ to ensure that he is convicted
‘at all costs’, and that Mr Downer’s ‘20
year-long commitment
to this case is now an obsession for a legacy
and not a pursuit of justice’. I concluded that the decisions
to prosecute
Mr Zuma has been wrongly ascribed to Mr Downer. They
were decisions taken by the national directors of public prosecution,
namely
Mr Pikoli in June 2005 and Mr Mpshe in December 2007, albeit
in conjunction with input from the investigation and prosecution team

and the head of the DSO. The same applied to the decision of Mr
Abrahams, on 16 March 2018, after the judgement of the SCA in the
spy
tapes case, who rejected Mr Zuma’s further representations and
concluded that ‘there are reasonable prospects of
a successful
prosecution of Mr Zuma on the charges listed in the indictment.’
Significantly, I concluded that Mr Zuma’s
fair trial rights had
not been infringed.
[78]
Mr Zuma also complained that he had been subjected to an unlawful
attempted physical examination.
This raised the interpretation of the
order granted by me on 10 August 2021 and certain exchanges
between counsel and myself
in court before the order was granted. The
details thereof are not relevant to this judgment. I found however
that the allegations
relied upon were hearsay and inadmissible, and
that the State’s version was corroborated by the
contemporaneous correspondence
exchanged at that time. I concluded
that Mr Zuma was not examined by medical specialists appointed by the
State at all, and that
all one was left with was an unjustified
attack on Mr Downer.
[79]
The correctness of the above 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, or are reasonably certain to arise, will be
apprehended to be.
[80]
I am not persuaded that all the arguments of Mr Zuma in respect of my
findings in respect
of the remainder of the fourteen grounds, other
than those relating to his medical condition and the alleged unlawful
leaking thereof,
all necessarily would lead to a perception of
reasonable apprehension of bias. Some might. But having regard to my
previous findings
in regard to the leaking of the letter of Dr
Mdutywa and whether that constitutes a violation of provisions of the
NPA Act, there
is in my view certainly a reasonable apprehension that
I would decide any subsequent issues involving the alleged
confidentiality
of Mr Zuma’s medical condition, the disclosure
of the letter of Dr Mdutywa, the leaking thereof to Ms Maughan, and
whether
that amounts to a contravention of s 46(6) of the NPA Act, in
a similar manner, and that this will reasonably affect the future

direction of this trial.
[81]
My findings on the disclosure of Mr Zuma’s medical condition
and whether it amounted
to a contravention of s 41(6) of the NPA Act
in my main judgement, were not simply en passant. Reasonably
construed they convey
a perception of a disposition to conclude and
view these complaints by Mr Zuma against Mr Downer, to be without
merit. A consequence
of those findings might be that Mr Downer should
continue as prosecutor in the prosecution of Mr Zuma. If that was to
be my conclusion,
with the result that Mr Downer is not removed as
prosecutor, then Mr Zuma would be more than reasonably justified to
feel aggrieved
that a decision was made favouring the argument of Mr
Downer, dictated, or at least very strongly influenced by my previous
findings,
to be consistent with my previous findings and the views I
had expressed.
[82]
In the light of past litigation, the issue of my independence and
whether I should recuse
myself, is an issue which will be contested,
if not now, then certainly in the future. The trial has reached a
stage, where the
proceedings to date are, with respect, beyond
criticism and reproach. The Constitutional Court has pronounced on
the most recent
application for leave to appeal, and in the absence
of any application for rescission of that order, the trial is ready
to proceed
on its merits. The pleas of both Mr Zuma and Thales have
been entered and are a matter of record. The trial is ready to
proceed
with the leading of oral evidence. When the trial is to
resume and/or whether this is to be with Mr Downer as the prosecutor
leading
the evidence on the merits, must be determined by a judge who
cannot reasonably be accused of having previously expressed any
conclusions
or views, on matters which will arise for decision.
[83]
The aforesaid conclusions
require that I recuse myself from the trial. It is what the sound
administration of justice, the requirements
of the Constitution, and
my conscience dictate. No reasonable negative inferences as to
whether the trial is constitutionally fair,
should be allowed to
arise. Mr Zuma argued that ‘It is not enough for a judge to be
just in his judgment; he should strive
to make the parties and the
community feel that he is just; he owes this to himself, to the law
and to the position he holds.’
That submission is correct. 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.
[85]
Conclusion
[84]
I accordingly recuse myself and hereby withdraw from the trial. The
trial will continue
before another judge.
KOEN
J
SUBMISSIONS
FILED BY
FOR
THE STATE:
WJ
DOWNER SC
KL
SINGH
I
DU PLOOY
FOR
ACCUSED 1
D
MPOFU SC
T
MASUKU SC
M
QOFA
N
BUTHELEZI
N
XULU
FOR
ACCUSED 2
NONE
[1]
Reported as
S
v Zuma & another
[2021]
ZAKZPHC 89; 2022 (1) SACR 575 (KZP); [2022] 1 All SA 533 (KZP).
[2]
National Prosecuting Authority Act 32 of 1998
.
[3]
I record, for the sake
of completeness, that I have been advised that this application has
also since been dismissed.
[4]
Mr Zuma had argued that the fourteen grounds pointed to an alleged
lack of objectivity and independence on Mr Downer’s
part which
required his removal as prosecutor in any event.
[5]
S v
Zuma & another
[2021]
ZAKZPHC 89;
2022 (1) SACR 575
(KZP);
[2022] 1 All SA 533
(KZP) para
286.
[6]
Take &
Save Trading CC & others v The Standard Bank of SA Ltd
[2004] ZASCA 1
,
2004 (4)
SA 1
(SCA),
[2004] 1 All SA 597
(SCA) para 3 and the cases cited
therein, and
S
v Basson
[2005]
ZACC 10
,
2007 (3) SA 582
(CC),
2005 (12) BCLR 1192
(CC) paras 32 –
34.
[7]
The last day of the current term is 2 December 2022.
[8]
They have pointed out that according to
Black’s
Law Dictionary
9ed
(2009)
sua
sponte
is
Latin for an action taken by a court which is not requested by
either the defence or the prosecution. For example, a judge
may
recuse him or herself from a case if there is a conflict of
interest.
Black's
Law Dictionary
9
ed defines 'sua sponte' as ‘[w]ithout prompting or suggestion;
on its own motion.’
[9]
S v
Sayed
[2017]
ZASCA 156
,
2018 (1) SACR 185
(SCA) para 41 – 45.
[10]
Bernert
v Absa Bank Ltd
[2010]
ZACC 28
,
2011 (3) SA 92
(CC),
2011 (4) BCLR 329
(CC) para 35.
[11]
Basson
v Hugo
[2018]
ZASCA 1
,
2018 (3) SA 46
(SCA),
[2018] 1 All SA 621
(SCA) para 26 and
Bernert
v Absa Bank Ltd
[2010]
ZACC 28
,
2011 (3) SA 92
(CC),
2011 (4) BCLR 329
(CC) para 28 and 31.
[12]
Basson
v Hugo
[2018]
ZASCA 1
,
2018 (3) SA 46
(SCA),
[2018] 1 All SA 621
(SCA) para 41 (in
the minority concurring judgment of Swain JA, quoted in
Basson
v Associated Portfolio Solutions (Pty) Ltd & others
[2018] ZAWCHC 184
para
36).
[13]
Basson
v Hugo
[2018]
ZASCA 1
,
2018 (3) SA 46
(SCA),
[2018] 1 All SA 621
(SCA) para 42 (in
the minority concurring judgment of Swain JA).
[14]
S v Le
Grange & others
[2008]
ZASCA 102
,
2009 (1) SACR 125
(SCA),
[2010] 1 All SA 238
(SCA) para
21.
[15]
C Okpaluba & T C Maloka 'Recusal of a judge in adjudication
recusal of a judge in adjudication: recent developments in South

Africa and Botswana' (2022) 9(1)
Journal
of Comparative Law in Africa
67
at 68.
[16]
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999]
ZACC 9
,
1999 (4) SA 147
(CC),
1999 (7) BCLR 725
(CC) para 48
(
SARFU
).
The SCA in
Peermont
Global (North West) (Pty) Ltd v Chairperson of the North West
Gambling Review Tribunal & others & two other cases
[2022] ZASCA 80
para 137
simply stated the test for recusal as follows:
'The
test, as formulated in
President of the Republic of South Africa
and Others v South African Rugby Football Union and Others
(
SARFU
), is whether a reasonable, objective and informed
person would on the correct facts reasonably apprehend that the
adjudicator
did not bring an impartial mind to bear on the
adjudication of the matter'. (footnote omitted).
See
also
Bernert v Absa Bank Ltd
[2010] ZACC 28
,
2011 (3) SA 92
(CC),
2011 (4) BCLR 329
(CC) para 30;
Scholtz & others v S
[2018] ZASCA 106
,
2018 (2) SACR 526
(SCA),
[2018] 4 All SA 14
(SCA)
para 117; and
Bennett & another v S; In Re: S v Porritt &
another
[2020] ZAGPJHC 275;
2021 (1) SACR 195
(GJ);
[2021] 1 All
SA 165
(GJ) paras 24 – 28. Note also the comments in
S v
Ramabele & others
[2020] ZACC 22
,
2020 (2) SACR 604
(CC),
2020 (11) BCLR 1312
(CC) paras 51 – 53. The Australian High
Courts have also referred to
SARFU
with approval, see
Ugur
v Attorney General for New South Wales
[2019] NSWCA 86
para 98,
and
Merrell & Merrell
[2019] FCCA 1184 para 73. The
British & Irish Courts have also approved of the test in
SARFU
,
see
Fingleton v The Central Bank of Ireland
[2018] IECA 105
paras 40 – 43,
Broughal v Walsh Brothers Builders Ltd &
another
[2018] EWCA Civ 1610
paras 16 – 25,
Heffernan v
The Director of Public Prosecutions
[2018] IEHC 576
paras 54 –
55,
Tracey v The Minister for Justice and Equality and Law
Reform & others
[2019] IEHC 950
paras 58 – 68,
Harrison v Charleton
[2020] IECA 168
paras 62 – 72,
Connor v Director of Public Prosecutions
[2022] IEHC 176
paras 6 – 15, and
Higgs v Farmor's School
[2022] EAT
101
paras 25 – 36.
[17]
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999]
ZACC 9
,
1999 (4) SA 147
(CC),
1999 (7) BCLR 725
(CC) para 35 –
48.
[18]
South
African Commercial Catering and Allied Workers Union & others v
Irvin & Johnson Limited (Seafoods Division Fish
Processing)
[2000] ZACC 10
,
2000 (3)
SA 705
(CC),
2000 (8) BCLR 886
(CC) paras 12 – 17.
[19]
Metropolitan
Properties Co (FGC) Ltd v Lannon
[1968]
EWCA Civ 5
,
[1969] 1 QB 577
at 599. A court should also not ‘shrink
from that task if necessary.’
[20]
EH
Cochrane Ltd v Ministry of Transport
[1987]
1 NZLR 146
(CA) at 153, as quoted in
Scott
v Otago Regional Council
[2008]
NZHC 1693
para 49
[21]
R v Bow
Street Metropolitan Stipendiary Magistrate and others, ex parte
Pinochet Ugarte (No 2)
[1999] UKHL 1
;
[1999]
1 All ER 577
at 592h (per Lord Nolan)
(Pinochet
No 2
).
[22]
Millar
v Dickson (Procurator Fiscal, Elgin) and other appeals
[2001]
UKPC D4
,
[2002] 3 All ER 1041
para 64.
[23]
Code of Judicial Conduct, GN R865,
GG
35802,
18 October 2012.
[24]
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999]
ZACC 9, 1999 (4) SA 147 (CC), 1999 (7) BCLR 725 (CC).
[25]
R. v.
S. (R.D.)
1997
CanLII 324
(SCC),
[1997] 3 SCR 484
paras 117 – 118. Para 117
has been recently quoted in the various jurisdictions of the
Canadian High Courts, eg:
R.
v. Richards
2017
ONCA 424
paras 42 – 50;
R.
v Lochner
2017
ONSC 1235
paras 22 - 30;
R
v Wilson
2019
ABCA 502
para 27;
Doyle
v. Canada (Attorney General)
2019
FC 168
para 60;
Grier
v. Grier
2021
ONSC 3301
paras 33 – 38;
R.
v. Sway
2021
ONSC 7349
paras 36 – 38; and
Yashcheshen
v Canada (Attorney General)
2021
SKCA 116
paras 31 and 63.
[26]
C Okpaluba & TC Maloka 'Recusal of a Judge in Adjudication:
Recent Developments in South Africa and Botswana' (2022) 9(1)
Journal
of Comparative Law in Africa
67
at 68.
[27]
C Okpaluba & TC Maloka 'Recusal of a Judge in Adjudication:
Recent Developments in South Africa and Botswana' (2022) 9(1)
Journal
of Comparative Law in Africa
67
at 67.
[28]
Gaetsaloe
v Debswana Diamond Company (Pty) Ltd
[2008]
BWCA 91
para 4. See also C Okpaluba & TC Maloka 'Recusal of a
Judge in Adjudication: Recent Developments in South Africa and
Botswana'
(2022) 9(1)
Journal
of Comparative Law in Africa
67
at 72.
[29]
Mr Zuma has submitted that in cases where a judge suggests
sua
sponte
,
that there are grounds for his own recusal, the test in
South
African Commercial Catering and Allied Workers Union & others v
Irvin & Johnson Limited (Seafoods Division Fish
Processing)
[2000] ZACC 10
,
2000 (3)
SA 705
(CC),
2000 (8) BCLR 886
(CC), must not be strictly adhered
to. Cameron AJ, in writing for the majority, said that a party
applying for the recusal of
a judge bears the onus of rebutting this
presumption of judicial impartiality and must adduce cogent and
convincing evidence
of a reasonable apprehension of bias on the part
of the judicial officer. He submits that in this case, the burden of
‘rebutting
this presumption of judicial impartiality’
cannot be required of a litigant where the presiding judicial
officer raises
doubts about his or her own perceived lack of
impartiality.
[30]
Bernert
v Absa Bank Ltd
2011
(3) SA 92
(CC) para 65.
Mbana
v Shepstone and Wylie
[2015]
ZACC 11
97 May 2015) para 65.
[31]
S v
Roberts
1999
(4) SA 915
(SCA),
[1999] 4 All SA 285
(A) at para 26.
[32]
R v
Sussex Justices, ex parte McCarthy
[1924]
1 KB 256
at 259, quoted in
S
v Herbst
1980
(3) SA 1026
(E) at 1029.
[33]
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999]
ZACC 9
,
1999 (4) SA 147
(CC),
1999 (7) BCLR 725
(CC) para 35.
[34]
Bernert
v Absa Bank Ltd
[2010]
ZACC 28
,
2011 (3) SA 92
(CC),
2011 (4) BCLR 329
(CC) para 28.
[35]
South
African Human Rights Commission obo South African Jewish Board of
Deputies v Masuku & another
[2022]
ZACC 5, 2022 (4) SA 1 (CC).
[36]
M J
Vermeulen Inc. v Engelbrecht No & another
[2020] ZAWCHC 148.
See
also
S
v Louie
[2020]
ZAWCHC 187
paras 14ffg.
[37]
S
v Boois
2016 JDR 0118 (Nm)
(reported as 2016 (2) NR 347 (HC)).
[38]
Fingleton
v The Central Bank of Ireland
[2018]
IECA 105
para 43. This is similarly expressed in
Bernert
v Absa Bank Ltd
[2010]
ZACC 28
,
2011 (3) SA 92
(CC),
2011 (4) BCLR 329
(CC) para 29, see
also the extensive discussion on application in paras 31 – 38.
Note, the United Kingdom Employment Appeal
Tribunal in
Higgs
v Farmor's School
[2022]
EAT 101
para 29.
[39]
Higgs v
Farmor's School
[2022]
EAT 101
para 29.
[40]
South
African Commercial Catering and Allied Workers Union & others v
Irvin & Johnson Limited (Seafoods Division Fish
Processing)
[2000] ZACC 10
,
2000 (3)
SA 705
(CC),
2000 (8) BCLR 886
(CC) para 15, note also paras 16 –
18 (Per Cameron AJ for the majority);
S
v Roberts
1999
(4) SA 915
(SCA) paras 32 – 33, and
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999]
ZACC 9
,
1999 (4) SA 147
(CC),
1999 (7) BCLR 725
(CC) para 13.
[41]
S v
Basson
[2005]
ZACC 10
,
2007 (3) SA 582
(CC),
2005 (12) BCLR 1192
(CC) para 27
.
[42]
S v
Lameck & others
[2017]
NASC 20
,
2017 (3) NR 647
(SC) paras 57, 78 – 82.]
[43]
S v
Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) para 53.
[44]
S v
Dawid
1991
(1) SACR 375 (Nm).
[45]
Millar
v Dickson (Procurator Fiscal, Elgin) and other appeals
[2001] UKPC D4
,
[2002] 3
All ER 1041
para 65 (per Lord Hope of Craighead); note the comments
in
Wewaykum
Indian Band v Canada
2003 SCC 45
,
[2003] 2
SCR 259
paras 63 – 66. See also C Okpaluba & L Juma ' The
problems of proving actual or apparent bias: An analysis of
contemporary
developments in South Africa' (2011) 14(7)
PELJ
14 at 22
[46]
R v
Barnsley County Borough Licensing Justices, Ex parte Barnsley &
District Licensed Victuallers’ Association &
another
[1960] 2 All ER 703
at
715.
[47]
R v
Barnsley County Borough Licensing Justices, Ex parte Barnsley &
District Licensed Victuallers’ Association &
another
[1960] 2 All ER 703
at
715, quoted with approval in
R
v Gough
[1993] UKHL 1
;
[1993]
2 All ER 724
(HL) at 724 .
[48]
Wewaykum
Indian Band v Canada
2003 SCC 45
,
[2003] 2
SCR 259
para 67.
[49]
Ex
parte Goosen & others
[2019]
ZAGPJHC 154,
2020 (1) SA 569
(GJ),
[2019] 3 All SA 161
(GJ) para 14.
Applied with approval by the Constitutional Court in
South
African Human Rights Commission obo South African Jewish Board of
Deputies v Masuku & another
[2022]
ZACC 5, 2022 (4) SA 1 (CC)para 75.
[50]
South
African Human Rights Commission obo South African Jewish Board of
Deputies v Masuku & another
[2022]
ZACC 5
,
2022 (4) SA 1
(CC) paras 75 and 90.
[51]
De Lacy & another
v South African Post Office
[2011]
ZACC 17
,
2011 (9) BCLR 905
(CC) para 49.
[52]
Minister
of Safety and Security v Jongwa & another
2013
(3) SA 455
(ECG) paras 43 – 44,
S
v Dube
2009
(2) SACR 99
(SCA) para 7; and
S
v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) para 53.
[53]
Sizani
v Mpofu
[2017]
ZAECGHC 127 para 74 – 76.
[54]
Mulaudzi
v Old Mutual Insurance Co Ltd
[2017]
ZASCA 88
,
2017 (6) SA 90
(SCA),
[2017] 3 All SA 520
(SCA) paras 59
and 68.
[55]
A
further issue which arose was w
hether
the trial should proceed with the leading of evidence,
notwithstanding the application for leave to appeal the main
judgment
to the Constitutional Court, but that has now fallen away
after Mr Zuma’s last application for leave to appeal my main

judgment was dismissed by the Constitutional Court.
[56]
Sections 41(6) and (7) of the NPA Act provide:
(6)
Notwithstanding any other law, no person shall without the
permission of the
National Director
or a person authorised in
writing by the
National Director
disclose to any other person
—
(a)
any information which came to
his or her knowledge in the performance of his or her functions
in
terms of
this Act
or any other law;
(b)
the contents of any book or
document or any other item in the possession of the
prosecuting
authority
; or
(c)
the record of any evidence given at an investigation as contemplated
in section
28(1),
except
—
(i)
for the purpose of performing his or her functions in terms of
this
Act
or any other law; or
(ii)
when required to do so by order of a court of law.
(7)
Any person who contravenes subsection (6) shall be guilty of an
offence and liable on conviction to a fine or to imprisonment
for a
period not exceeding 15 years or to both such fine and such
imprisonment.’ (emphasis in the original)
[57]
Monday 9 August 2021 was a public holiday.
[58]
Per Ponnan JA in
City
of Cape Town v South African National Roads Authority Limited and
others
[2015]
ZASCA 58; 2015 (3) SA 386 (SCA); [2015] 2 All SA 517 (SCA).
[59]
Section 36 of the Constitution. See generally in regard to the right
to privacy,
Bernstein
and others v Bester NNO and others
1996
(2) SA 751 (CC), 1996 (4) BCLR 449 (CC).
[60]
S v
Shaik
[2007]
ZACC 19
;
2008 (1) SACR 1
(CC) para 44.
[61]
On 10 August 2021 I granted an order postponing the trial to 9 and
10 September 2021, I further directed that a medical report
in
respect of Mr Zuma be delivered by not later than 20 August 2021,
and ordered that the State may appoint a medical practitioner
of its
choice to examine Mr Zuma, and if necessary, to give evidence, as to
his fitness to attend court and stand trial.
[62]
Nundalal
v Director of Public Prosecutions KZN & others
[2015] ZAKZPHC 25.
[63]
Nundalal
v Director of Public Prosecutions KZN
&
others
[2015]
ZAKZPHC 25 para 53.
[64]
Nundalal
v Director of Public Prosecutions KZN
&
others
[2015]
ZAKZPHC 25 para 54.
[65]
Du
Plessis v De Klerk
[1996]
ZACC 10
;
1996 (5) BCLR 658
(CC) at footnote 87.
[66]
A judge must recuse himself where one of the parties has a pending
lawsuit against the judge. See
In
re Braswell,
600
S.E.2d 849, 358 N.C. 721 (2004).
[67]
State
v. Fie
,
359 S.E.2d 774, 320 N.C. 626 (1987) (judge requested District
Attorney to file the pending charges against defendant based on

testimony he gave at another trial).
[68]
He does state that he does not imply that I am actually prejudiced
against him, or biased, but that the reasonable appearance
of a
preconception of the merits of the charges against Mr Downer and his
exoneration through my ‘ruminations’ is
sufficient to
require a recusal.
[69]
These applications were initially set down for hearing on 8 and 9
December 2022 but are now, I am given to understand, apparently
to
be heard by a full court in March 2023.
[70]
Young
v. United States ex rel. Vuitton et ls S.A
.,
481 U.S. 787
(1987) (plurality opinion).
[71]
Young
v. United States ex rel. Vuitton et ls S.A
.,
481 U.S. 787
, 814 (1987) (plurality opinion). See also
Bordenkircher
v Hayes,
[1978] USSC 33
;
434
U.S. 357
(1978); and
Berger
v. United States
,
295 U.S. 78
(1935).
[72]
Smyth v
Ushewokunze & another
1998
(2) BCLR 170 (ZS).
[73]
Smyth v
Ushewokunze & another
1998
(2) BCLR 170 (ZS).
[74]
See,
M
Mhaga
‘Zuma prosecutor: Adv Billy Downer SC has our full support –
NPA. NPA confirms support for Adv Billy Downer
SC as lead prosecutor
in Zuma/Thales trial’
Politicsweb
,
6 September 2022;
https://www.politicsweb.co.za/documents/zuma-prosecutor-adv-billy-downer-sc-has-our-full-s
(Accessed: 3 January
2023).
[75]
Prior to our Constitutional democracy the defence was not entitled,
for example, to obtain statements of witnesses from the police

docket.
[76]
Just as the foremost duty of defence counsel is also not to seek an
acquittal or delay of proceedings at all costs but to advance
what
defence might be available to an accused in an ethical manner, with
due regard to his or her duties as an officer of the
court, and to
act at all times only in the best interests of justice.
[77]
Phillips
v Botha
[1998]
ZASCA 105
;
1999 (2) SA 555
(SCA);
[1999] 1 All SA 524
(A) at 565E-F,
quoting with approval from the Australian High Court case of
Varawa
v Howard Smith Co Ltd
[1911] HCA 46
;
(1911)
13 CLR 35
at 91..
[78]
The Supreme Court of Appeal in
Member
of the Executive Council for the Department of Co-operative
Governance and Traditional Affairs v Maphanga
[2019]
ZASCA 147
;
2021 (4) SA 131
(SCA);
[2020] 1 All SA 52
(SCA) para 26,
however cautioned that courts must proceed cautiously and that it is
only in clear cases that an order curtailing
a litigant’s
access to court would be granted.
[79]
Mineral
Sands Resources (Pty) Ltd & others v Reddell & others
[2022] ZACC 37
para 52.
[80]
This
case has been commented on by Prof
P
de Vos in ‘Slapp suit judgment paves the way to shutting the
door on Stalingrad tactics’
Constitutionally
Speaking
17
November 2022.
https://constitutionallyspeaking.co.za/slapp-suit-judgment-paves-way-to-shutting-the-door-on-stalingrad-tactics/
(Accessed: 3 January
2023).
[81]
S v
Botha
2006
(1) SACR 105
(SCA) para 3.
[82]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision
Service 66) at ch31-p32F.
[83]
S v
Botha
2006
(1) SACR 105
(SCA) para 4. S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision
Service 66) at ch31-p31 which applies this principle also to entries
in terms of
s 317.
[84]
Zuma v
National Director of Public Prosecutions
[2008]
ZAKZHC 71, [2009] 1 All SA 54 (N).
[85]
See generally the commentaries: S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(Revision
Service 68,
2022) at ch15-p39 to ch15-p40A and A Kruger
Hiemstra's
Criminal Procedure
(Service
Issue 15, February 2022) at 15-20 – 15-21.