Reducing appeal options is the only way to stamp out 'Stalingrad tactics', says judge Piet Koen

KwaZulu-Natal judge Piet Koen, who once presided over Jacob Zuma’s arms deal-related corruption trial, says the only way to deal with “Stalingrad” tactics is to reduce the number of appeals available to a disgruntled accused.

Koen was interviewed on Monday by the Judicial Service Commission for one of three vacancies on the Supreme Court of Appeal.

He was questioned by National Assembly representatives Fasiha Hassan (ANC) and Glynnis Breytenbach (DA) on what the judiciary “as the last line of fire” could do to counter Stalingrad tactics used to circumvent justice.

“That is a topic on its own. The primary problem is the availability of appeals. And as long as there is a right to appeal, it's difficult to shut the door unless you can show that it's mala fide and an abuse of process — and that is not something that a court should lightly conclude,” he said.

“Our law permits a number of appeals. Perhaps the law commission might look at limiting the number of stages that are available.”

He said he had done a calculation which showed an appeal from a regional court could come before 18 judges through six or seven appeal stages, all with delays.

Breytenbach asked if it did not require “more boldness” from the bench with judges appearing to be “caving” in.

“I would hate to equate boldness with recklessness. Perhaps more consideration must be given when applying the test [for appeal],” Koen said.

“Even if an application for leave to appeal is refused, there is another step available and another step if that is refused, and it can go right up to the Constitutional Court. The solution, perhaps, lies in reducing the number of stages available to a disgruntled accused.” 

Koen recused himself from Zuma’s matter in January 2023 because he had already expressed a view about Zuma’s attacks on lead prosecutor Billy Downer finding that he did have title to prosecute him. Zuma then initiated a private prosecution against Downer and was poised to again apply for him to be removed from the case based on this new development.

On Monday Breytenbach said: “I know this issue has been flogged to death, but would you decide the [recusal] matter differently today? It has set the matter back three years.”

Koen said the trial had not been delayed by his recusal because another judge had been appointed to hear it almost immediately.

“There was a full court hearing regarding the private prosecution. And interestingly, the grounds I raised that placed me in a position to recuse myself were the very grounds that were raised and rejected by the full court,” Koen said.

“Recusal is a personal matter. It involves a lot of conscience. People and the courts will differ on it. It’s [about] the importance of the judicial process remaining intact and being respected.”

He said it was the only time he had ever recused himself in his 18 years on the bench.

Commissioner Athol Trollip (ActionSA) raised the lashing Koen got in 2021 from former chief justice Mogoeng Mogoeng, who accused him of being rude to him at a meeting and questioned how he had ever become a judge.

“I have dealt with this issue before,” Koen said. “It left me gutted.”

He said the meeting in question was recorded and the transcript showed Mogoeng Mogoeng had mistaken him for another judge.

“I accepted that a mistake was made. It’s water under the bridge. We must move on with life.”

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