Koen was gutted by former chief justice Mogoeng's lashing last year, considered leaving the judiciary

KwaZulu-Natal judge Piet Koen — who is vying for one of five vacant positions on the Supreme Court of Appeal — said he was “gutted” by the “lashing” he received from former chief justice Mogoeng Mogoeng during his interview before the Judicial Service Commission (JSC) in April last year when he applied unsuccessfully for appointment to the appeal court.

Koen said afterwards he had even considered leaving the judiciary.

During the April 2021 interview, Mogoeng, without giving Koen any warning, described a meeting which took place in 2016 with judges from the KwaZulu-Natal division on proposed cost-cutting measures.

Mogoeng said it was one of the most “unfortunate meetings” he had ever had and Koen — who has been a judge since 2006 — had been rude and hostile.

The former chief justice questioned how Koen had been appointed as a judge and how he treated litigants in his court.

At the start of his interview on Monday — prompted by deputy chief justice Mandisa Maya who chaired the first day’s interview proceedings — Koen said he had obtained a transcript of the meeting and an audio recording which he sent to all commissioners.

“I don’t want to score points out of this. I just want to put the record straight and I am happy to be judged by the transcript and audio.”

Describing the impact of the “unfortunate incident”, he said he had been “very saddened” when he left the interview.

He had been warned he would be questioned about the cost-cutting measures, but had been completely unprepared when Mogoeng raised his alleged rudeness and questioned how he was appointed a judge.

“I don’t want to spend negative energy on this issue ... it’s something that happened. But it was unjustified. Commissioners can listen to the recording and they will pick up there was no raising of voices. I was speaking as I am at the moment.

“I was gutted. If litigants or people in the profession Google my name, what comes up is the lashing I received. It is now a historical fact that will remain with me for the rest of my life.”

Koen said after the interview, his phone rang non-stop with calls from judges and lawyers who were shocked, asking what the former chief justice was talking about. People were saying he should sue for defamation.

“But where will that get us?” he said. “I don’t think that would be in the interests of the judiciary. It was an unpleasant episode in my life. I sometimes relive it in the early hours of the morning ... but I don’t want to hark back on it. There are more important things.”

In response, Maya said: “Those who worked with you at the SCA don’t know the person described there ... throughout your acting stints you behaved impeccably as any good judge would.”

Koen, who is the presiding judge in the stalled arms deal-related corruption trial of former president Jacob Zuma and French arms company Thales, soon found himself in hot water for remarks he made about the “court of public opinion”.

He had been asked why he had attached to his application judgments concerning his rulings in that matter and, in particular, why he had attached a judgment he had given agreeing to adjourn the trial in the face of appeals Zuma had lodged against his decision not to grant his special plea, aimed at ousting lead prosecutor advocate Billy Downer.

Koen said he had wanted to attach a “more recent judgment ... and something that was topical”, given the pressure “in the court of public opinion”.

While he was not governed by that, there was public interest in delays in trials. He wanted the public to have a better understanding of why the trial had to be adjourned because that area of law was “complex”.

Commissioners, including EFF leader Julius Malema, asked why he was raising the issue of public opinion when it was expected of judges to be impartial. 

“You brought up the issue of public opinion ... you are clearly trying to tell us that you get influenced by public opinion. No-one else has raised it. You are the one who brought it to the fore,” Malema said.

Referring to other cases he had presided over, including one involving former state security minister Siyabonga Cwele's wife, Sheryl Cwele, and another involving the Cape Bar Council and the JSC, commissioner Kameshni Pillay SC said it appeared Koen was trying to “score brownie points” for acting impartially “when that is entrenched in the code of conduct for judges”.

Koen denied this. 

On the issue of public opinion, he said: “I don’t take it into account at all. I raised it in the context of the question as to why I chose this judgment to annex.

"It demonstrates the principles according to which I decided the matter. There are other people who might  criticise some of the adjournments I have granted. Hopefully, it's part of an educational function.”

Commissioner Carol Steinberg SC came to his rescue, suggesting public perception of the judiciary was a legitimate concern, given delays in trials where people with resources can “string out cases for as long as two decades”.

She said Koen had handled the Zuma trial in a “remarkably expeditious way”.

Steinberg asked whether there was anything stopping a judge from going on with a trial while appeals wended their way through the courts and if law reform was needed.

Koen said he would deal with the question generally, that he was uncomfortable speaking about the Zuma trial because it was an ongoing case. He said in civil matters, as soon as a litigant applied for leave to appeal, the judgment was suspended.

“A judge can refuse leave to appeal, but if the litigant petitions the SCA, there is an inevitable delay until that petition is considered.

“In criminal matters, the field is a bit more muddy, but in civil matters I have often asked myself whether we haven’t reached the point where the judge should decide whether the judgment should be put into effect in spite of the pending appeal, especially if the appeal has no prospects,” he said.

The interviews continue on Tuesday. In total 42 candidates are applying for 20 vacant posts in various courts.

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