Judge Piet Koen says he was devastated by Mogoeng’s attack

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KwaZulu-Natal high court judge Piet Koen on Monday said he was devastated after he was berated by then Chief Justice Mogoeng Mogoeng in his last interview with the Judicial Service Commission (JSC) in 2020 as being too rude to be on the bench.

Koen, who is a familiar name as the trial judge in the Jacob Zuma arms deal corruption case, disclosed this while being interviewed for a position at the Supreme Court of Appeal, 15 months after the unsuccessful interview for a seat on the same court in which Mogoeng lashed out at him.

He attached to his application a transcript of the 2016 meeting of judges on cost cutting measures at courts on which Mogoeng based his attack.

“I don’t want to spend negative energy on this issue, it is something that happened. I think it was unjustified, with respect, but commissioners can look at it, they can read the transcript of that judges’ meeting that was said to have caused so much offence,” Koen said.

“I was gutted by what was said. If litigants or people in the legal profession Google my name, they come up with that interview and the lashing that I received. That is going to be a historical fact that is going to remain with me for the rest of my life, but we must move on.”

He said after the ill-fated interview on 14 April last year, his phone rang non-stop. Among the callers were constitutional and appellate court judges and senior lawyers who said they did not recognise the character described by Mogoeng.

“It is something that I re-live quite often in the early hours of the morning. I won’t deny it, but I suppose it comes with the territory. I’m not wanting to score points on it, I’m simply putting the record straight and I am happy to be judged by what commissioners think of the recording and of the transcript I have circulated.”

In an outburst that stunned many, Mogoeng had said: “Now your [2016] comments in particular and I am putting it at the lightest possible level, were the most discourteous comments I’ve ever heard a judge make to his own colleague. I left the meeting deeply concerned about how KZN Judge President [Achmat] Jappie will ever be able to run a division like that. Deeply concerned.”

He continued: “Well, let me only focus on you, how you treat advocates who appear before you. How you treat litigants and witnesses. How you treat members of the public in other words. I was shocked! I said to myself: ‘How did he become a judge?’”

The matter was raised by Deputy Chief Justice Mandisa Maya to give Koen an opportunity to clear the air.

After listening to him, she said: “Well, for what it may be worth I do want to place it on record that those who worked with you at the SCA do not know the person that was described here during those proceedings. Throughout your acting stint at the Supreme Court of Appeal you always behaved impeccably as any good judge would.” 

Koen’s interview inevitably turned to the Zuma case. He had, as one of the three judgments he attached to his application, chosen a ruling in May where he postponed it until later this month pending a decision by Maya, as then president of the SCA, on a reconsideration application filed in terms of section 17 (2)(f) of the Superior Courts Act.

Zuma brought the application after the appellate court denied him leave to appeal Koen’s dismissal of a special plea in which he argued that state prosecutor Billy Downer lacked standing to prosecute him.

His senior counsel, advocate Dali Mpofu, argued that the trial must be placed on hold as section 18 of the act stipulates that, barring exceptional circumstances, a decision that is subject to an appeal or an application for leave to appeal, is suspended. 

The state objected that it was simply another delay tactic but Koen held that the law compelled him to grant a postponement, despite his doubts about the merit of the application for leave to appeal.

“It does not seem to me that this court has much of a discretion, if it has one at all, to deny those appeal rights statutorily ordained, unless in the clearest of cases where there is an abuse of rights,” he said in the ruling.

Maya dismissed Zuma’s application, and the constitutional court denied him leave to appeal her decision. However, it is widely expected that Zuma will yet petition the apex court directly to appeal Koen’s dismissal of his special plea and there is no hope that his trial, which has loomed on and off since 2005, will proceed until the new year.

JSC member Mvuzo Notyesi wanted to know why he had submitted something as banal as a ruling granting a postponement.

Koen replied that the other two judgments were given in an acting capacity at the SCA, and he felt it was necessary to submit a recent high court ruling and “something that was topical”.  But his answer suggested he was also addressing popular concern that a high court judge had readily ceded to so-called Stalingrad tactics.

“You are undoubtedly aware that a lot of pressure is brought to bear, certainly in the court of public opinion, not that I am governed by the court of public opinion at all, by delays that ensue and of appeals taking time. 

“And I was really annexing this judgment to show how I have an appreciation of how the law has changed in regard to what principles govern appeals in a matter of this nature and delays that ensue, so that there is a better understanding of this.”

He noted that the introduction of the Superior Courts Act of 2013 had consequences that may call for reform on section 18 of the act, which suspended the operation of a court ruling when leave to appeal was sought. 

“Appeals had become quite a hot potato being discussed at times and I think what I was trying to demonstrate to you as commissioners was, this adjournment wasn’t just something that was a convenient thing to grant out of the air, it was a considered judgment in the light of numerous, not always that clear principles.

“It is an area possibly that might require some judicial reform at some point because it is quite a messy area where what is appeals in a civil context in terms of the Superior Courts Act also come to apply when one gets to stages where there is a consideration or reconsideration in a criminal matter which falls under section 17(2)(f)… and where the two then merge.”

The reply did not sit well with Economic Freedom Fighters leader Julius Malema, who said Koen’s answer showed that he was overly mindful of public opinion. 

Koen countered that he had simply explained why he had attached the judgment, and added that respect for the law rested in part on the rationale for court rulings being set out as clearly as possible.

“Public perception is certainly a very important aspect when one comes to respect for the law and for the public respecting what happens in courts and I see public perception in that context as courts being required to have a very important educational role,” he said.

Pressed further by Advocate Caroline Steinberg SC, he said it would be improper to expand on a pending case but ventured that lawmakers may consider allowing trial judges leeway to decide that a ruling should take effect regardless of an application for leave to appeal.

“I have often asked, or I ask myself and I ask on this platform, whether we haven’t reached the point where when an application for leave to appeal is filed, 18(1) must not be amended to read that it does not automatically suspend the operation of the judgment… but that it may be suspend on the discretion of the judge.”

It should be allowed where an appeal has no prospect of success, without robbing anybody of the right to petition the highest court, he added. 

“But at least the judge can say the operation of this judgment won’t be suspended.”