Capacity: Judge
First appointed as judge: November 2006 (KwaZulu-Natal High Court)
Further Appointments: Supreme Court of Appeal (October 2024)
Gender: Male
Ethnicity: White
Date of Birth: September 1959
Qualifications: BComm (1980) LLB cum laude (1982) (UKZN) Dip.(Arbitration)(1986)
Key judgments:
- Cape Bar Council v Judicial Service Commission [2012] 2 All SA 143 (WCC),
- Mahlangu v Minister of Police 2020 (2) SACR 136 (SCA) (21 April 2020)
- Shoprite Checkers (Pty) Ltd v Everfresh Market Virginia (Pty) Ltd t/a Wild Break 166 (Pty) Ltd (6675/09) [2010] ZAKZPHC 34 (25 May 2010)
- Staufen Investments (Pty) Ltd v The Minister of Public Works, Eskom Holdings SOC Ltd & Registrar of Deeds, Cape Town [2020] 2 All SA 738 (SCA); 2020 (4) SA 78 (SCA) (25 March 2020)
Candidate Biography | updated May 2024:
Judge Petrus Arnolus Koen is a judge of the Supreme Court of Appeal.
The Pietermaritzburg-born Judge Koen holds a B. Com, LLB and Diploma in Arbitration. He obtained his qualifications from the University of KwaZulu-Natal.
Koen’s legal career started in 1985 when he commenced with his articles of clerkship at J Leslie Smith & Co Attorneys. He completed his article of clerkship 1986 and he was retained as a practicing attorney, notary public and conveyancer at the same firm of attorneys.
In 1988, Koen decided to join the Bar and practice as a junior advocate, which position he held until a silk (SC) status was conferred on him 10 years later, in November 1997. While a junior advocate, he also lectured on a part-time basis at the University of KwaZulu-Natal, Pietermaritzburg.
He was appointed a permanent judge to the KwaZulu-Natal division of the High Court in November 2006.
Judge Koen has written several judgments, some of which were against the Judicial Service Commission (JSC).
In the case of Cape Bar Council v Judicial Service Commission, Koen (alongside Judge Fikile Mokgohloa) found that, when considering candidates for judicial appointment, the JSC could not sit without it’s full complement of members prescribed by section 178(1) of the Constitution. Any meeting without members is therefore invalid. On the failure to fill the two vacancies arising from that meeting, Koen found that it was “incumbent upon the JSC to account for its failure to have appointed at least those considered to be appropriately qualified and fit and proper candidates.” The JSC’s subsequent appeal was unsuccessful, and the SCA upheld Koen’s judgment.
In recent years, Koen has had to contend with the numerous cases involving former President Jacob Zuma, who has fought tooth and nail to prevent his corruption trial from going ahead – the so-called Stalingrad Strategy. After Koen dismissed several of Zuma’s attempt to remove his prosecutor, Advocate Billy Downer SC, Zuma signalled to Koen that he will ask for his recusal from the case. Indeed, Koen recused himself, ‘for the sake of justice’. This was on the grounds that his involvement in Zuma’s cases and the trenchant statements he has made in judgments criticizing Zuma for his Stalingrad strategy, particularly on the case concerning Downer’s ‘title’ (right) to prosecute Zuma. “When reasonably construed, my findings indicate that I have favoured a particular interpretation of these factual issues”.
Koen has spent several stints as an acting justice of the Supreme Court of Appeal Justice. This includes Dec 2014 – March 2015, Dec 2019 – May 2020, and recently October 2023 to May 2024.
During his acting stints at the SCA, Koen wrote for the majority judgment in the case of Mahlangu v Minister of Police, which dealt with the police minister’s liability for damages related to a person is in police detention in terms of various court orders.
Koen held that every court order, including an initial order for detention ‘should be a deliberative judicial act and must consider the rights of the arrested person and weigh those in the scales of justice against the interest of the public to have persons reasonably suspected of being perpetrators of crime detained, where appropriate, pending their prosecution. A court order which simply directs the detention of an accused person without giving due consideration to these constitutional imperatives…is liable to be impugned.’
Koen found that, on the balance of probabilities, had the plaintiffs in the case applied for bail, the court hearing the application would have concluded that the confession that used to keep them in detention was inadmissible, which, on the assumption it was the reason for their continued detention, would have led to the release of the plaintiffs. The appeal was upheld, and plaintiffs were awarded damages of R190 000 and R150 000, respectively.
While the plaintiffs were awarded a portion of damages, the court found that the police minister was not liable for the entire period of detention. In a subsequent appeal to the Constitutional Court, Koen’s judgment was set aside and the Concourt awarded full damages.
Prior to this appointment as a judge, was the chairperson of the Pietermaritzburg Society of Advocates (2005) and sits on the editorial board of the South African Journal of Criminal Justice.
October 2024 SCA Interview:
October 2024 SCA Interview Synopsis:
In contrast to previous experiences where Jude Koen’s character was called into disrepute, CJ Maya started the interview explaining how she was struck by the comments written by some of the people who commented on his candidature. One of these described Judge Koen as a “fundamentally good human being” which specifically touched CJ Maya.
Not being able to escape the past when coming to be interviewed by the JSC, the two poignant discussions in previous interviews were raised once again. Those being the questions relating to his recusal in the Zuma matter and the negative comments made about his character by previous Chief Justice Mogoeng Mogoeng. Commissioner Trollip asked Judge Koen how the comments by Mogoeng had made him feel. Koen provided a very similar answer as he did in his interview in May.
It was Commissioner Breytenbach who brought up his recusal in the Zuma matter. She posed to him that in retrospect, knowing that all other courts would have agreed with him, would he have decided not to recuse himself today? Bearing in mind that the recusal set the case back nearly three years. Koen took issue with the last point and noted that the delays were not due to the recusal as a new Judge was appointed to the case shortly after he had recused himself. He accepts that recusal is a personal matter, but at the end of the day he said that it is the importance of the judicial process being respected which is of most vital importance. CJ Maya followed on this question by asking Koen “In 18 years how many times have you recused yourself on a matter?” to which he responded that this was the only time. Prof Marumoaggae further supported this by noting that he thinks Judge Koen applies the test for recusal correctly.
On the matter of transformation, Commissioner Hassan asked what measures he has put in place to contribute to lawyers as he was coming through the ranks in the legal field and whether they have contributed to the transformation in the sector? Koen’s involvement takes the form of lecturing, training and mentoring pupils, most of which he pointed out have done very well.
Ultimately, Judge Koen was successful on his fourth attempt and will join the SCA.
SCA Interview | May 2024
In May 2024 Judge Koen was interviewed by the JSC for a position on the Supreme Court of Appeal. Koen was unsuccessful in his interview.
SCA Interview Synopsis | October 2022
On his last occasion before the JSC in April 2021, KwaZulu-Natal High Court Judge Piet Koen had faced a barrage of questions over rude statements he had allegedly made to Chief Justice Mogoeng Mogoeng when the latter came to speak to KZN judges about salary increases. Mogoeng put these allegations to Koen in the public interview, where Koen was vying for one of five posts on the SCA. An exasperated Koen flailingly tried to explain that he has no recollection of the statements and, in any event, would never make them in any meeting. But this did not help him, the die was cast and his interview sunk.
He now returns, 18 months later to again interview for a position on the SCA.
After the usual pleasantries, Deputy Chief Justice Maya asked whether Koen “would like to set the record straight” on anything, in veiled reference to the unfortunate events of the last outing.
Koen had prepared a written statement and was happy at the opportunity to put it on record.
Koen said he was both “saddened” and “gutted” after the interview about the criticisms that had been expressed about him. For this interview he circulated the transcript and audio clip of the meeting brought up by Mogoeng for the commissioners to assess and for the record to be set straight.
Koen described the impact of the interview by saying that “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 will remain with me for the rest of my life, but we must move on.”
With a sigh, Maya then put this unfortunate matter to bed by commenting on Koen’s character and stating that he always “behaved impeccably” during his acting stint at the SCA.
The rest of Koen’s interview carried on in a calm, if not critical manner. Several commissioners questioned Koen on what he has learn since his last occasion. “I have now completed 16 years as a puny judge” Koen said, in response to a question from Commissioner Nyambi. “I have now grown to a stage where he is looking for new challenges like the SCA… and I foresee more professional growth in an appeal court setting,” Koen replied.
Obliquely referring to the never-ending Zuma saga, Commissioner Steinberg asked what the long delays in cases do to public perceptions of the judiciary, and what should judges do. Koen replied that in the State v Zuma matter he has acted expeditiously with the many interlocutories before him and now it is again in abeyance. “But what do we do about the problem – what reform is needed to fix this?” Steinberg asked desperately. “Public perception is an important aspect when it comes to respect for the law and respect for the courts,” Koen replied, adding that courts have an important educational role on why certain consequences flow. He suggested the reform of section 18 of the Superior Courts Act to deal with circumstances of implementation of court orders pending appeal.
Koen was not successful in his interview and was not recommended for appointment.
April 2021 Interview:
One of the abiding memories Chief Justice Mogoeng Mogoeng will leave behind when he retires in October is the sense that he occasionally used the Judicial Service Commission (JSC) interviews to settle scores and respond to perceived slights against him.
The closing exchanges during the interview of KwaZulu-Natal Piet Koen being a case in point.
Mogoeng described a meeting he had in 2016 with judges from the KwaZulu-Natal division to discuss proposed cost-cutting measures to be implemented, where he described both the judge president and his deputy as being “terrified”.
The Chief Justice described the encounter as “one of the most unfortunate meetings I have ever had” and accused Koen of being “most discourteous” when he had spoken out about the proposed cost-cutting.
According to Mogoeng the hostility had been “unprecedented”: “I was shocked and asked ‘how did he [Koen] ever become a judge?’”
Koen said that the meeting had to be considered “in context” and that the cost-cutting measures proposed by the Chief Justice was a “hotly debated issue”. He said that as one of the senior judges he had been asked by his colleagues to draft submissions in response to the proposed measures — and had subsequently “collated” the other judges responses into a short memo.
Koen also made clear that the proposed cost-cutting measures, which related to travel expenses and allowances to buy vehicles among others, did not affect him, suggesting that he would then not have been as passionately vociferous as Mogoeng suggested.
Mogoeng pointed out that he had no issue with the points being raised but, rather, the “discourteous” and “extremely rude” manner in which he had been addressed.
Before apologising “unreservedly” Koen said that he had read the minutes of the meeting: “I respectfully submit that the contents thereof were not intended to be rude… But perception is important. And if it was construed as such I am very saddened and I apologise unreservedly.”
TimesLIVE later reported that Mogoeng had confused Koen with another judge. Days later over 80 advocates in KZN released a statement criticising the manner in which Koen had been treated in the interview. They also confirmed that:
“He is courteous to all who appear before him, including litigants. We say that in answer to the apparently rhetorical question posed [by Mogoeng] as to whether litigants and practitioners who appear before him are treated decorously and judiciously.”
Perhaps Mogoeng was just being his usual recklessly injudicious self. Perhaps the chief justice was having one of his spikily bad days. Perhaps he saw it as an opportunity to score points against a judge who had found against the JSC in the 2012 matter of Cape Bar Council v Judicial Service Commission & Others. A judgment which was upheld by the SCA on appeal.
The judgment was broached earlier in his interview in a more deft way by commissioner Narend Singh from the IFP, who asked Koen whether he had any apprehensions of being unfairly treated by the commission because of that judgment.
Koen apologised if the impression created in his application form that he expected “malicious” treatment from the commission. He continued: “The spokesperson [of the JSC] was very critical of my judgment but I didn’t take it personally, I welcomed the disagreement,” he said.
When quizzed about how his appointment, as a white male, would assist in transformation of the SCA, Koen said it was up to the commission and SCA president Maya to figure out a succession plan at the appellate courts and “what type of jurisprudential philosophy you want to establish”.
Asked about whether he was a conservative or progressive judge, Koen said he “probably” took a “positivist” approach to adjudicating.
On his judgement writing, he said: “I write judgments for the loser, that has always been my approach… the loser must understand why they have lost… It is important to write in an intelligible language that a lay person can understand,” he added.
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