Zuma trial: 'personal reasons' for recusal

The Weekend Argus has learnt that Deputy Judge President Phineas Mojapelo's "personal reasons" for not being available to try Jacob Zuma for rape are based on his respect for the disgraced former deputy president, who was his comrade in the anti-apartheid struggle.

Zuma rocked the South African legal world this week when a judge president recused himself and the next two most senior judges in the Transvaal Provincial Division made themselves unavailable to try the embattled former deputy president on charges of raping a 31-year-old Aids activist in his Forest Town home in Johannesburg last year.

Judge Bernard Ngoepe, the judge president of the TPD, recused himself from the trial on Monday afternoon.

When he did so, he announced that one of his two deputy judge presidents, Judge Mojapelo, who had been widely tipped as the judge who would try Zuma, was not prepared to hear the case for "personal reasons" and that his other deputy judge president, Judge Jeremiah Shongwe, was likely to hear the trial.

Judge Shongwe did not appear in court on Tuesday morning after it became known that Zuma had fathered an illegitimate child, now a 29-year-old man named Edward, with Judge Shongwe's sister.

Judge Ezra Goldstein then presided in court on Tuesday and promptly granted Zuma's defence team a three-week postponement to deal with a mass of new evidence which the prosecution had suddenly introduced.

Yesterday, it was learnt that Judge Phineas Mojapelo's personal reasons for not hearing the case were because of his apartheid era connections with the embattled former deputy president.

Impeccable sources revealed last night that Mojapelo - who operated Nelspruit's first black law firm with former Mpumalanga premier Mathews Phosa - declined to hear Zuma's case because his anti-apartheid practice had put him in frequent contact with Zuma.

"I think (Judge Mojapelo) considered that it would be highly unethical to try his former struggle comrade for rape," the source said

While Zuma's supporters expressed their disapproval when Judge Goldstein postponed Zuma's case this week, it is understood his advisers and legal team have no qualms about a white judge hearing the case.

Judge Ngoepe said on Monday that seniority would be the only basis for choosing judges in high-profile cases.

His statement will be tested in the wake of his senior judges declaring themselves unavailable since the next top 15 senior available judges are all white men.

Judge Lucy Mailula, one of the few permanent woman High Court judges, is at number 16.

A current list of Transvaal and Witwatersrand judges, ranked in order of seniority, shows that Pretoria High Court Judge Willie van der Merwe follows Judge President Ngoepe and his two deputies.

Judge Goldstein is the most senior Johannesburg High Court judge, but according to court rosters he is due to hear a civil case on the week of Zuma's new court date. Pretoria judges Fanie Mynhardt, Chris Botha and Ben du Plessis are the next most senior.

Judge Meyer Joffe is the next most senior Johannesburg judge after Judge Goldstein, but he is also due to hear a civil trial on March 6.

Next in line after Pretoria Judge Willem de Villiers is Judge Joop Labuschagne, who presided over the trial of Leigh Matthews's killer, Donovan Moodley.

He is listed as due to hear "special criminal matters" in the week of March 6. The fourth Johannesburg judge, in order of seniority, is Judge Lewis Goldblatt.

Zuma's legal team had "difficulties" with both Judge Ngoepe and Judge Shongwe. The basis for their application to Judge Ngoepe to recuse himself stemmed from Judge Ngoepe's signing of search-and-seizure warrants allowing the Scorpions to raid Zuma's Forest Town residence last August and the offices of his attorneys in Johannesburg and Durban.

On recusing himself on Monday, Judge Ngoepe denied Zuma's fears were well-founded, but said he believed that Zuma would continue to "hold his fears despite all my explanations".

With acknowledgement to the Karyn Maughanand, Jeremy Gordin and Cape Argus.