Justice Hlophe
Judge President John Hlophe during his hearing by the Judiciary Service Commission ( JSC) in Braamfontein, Johannesburg. Hlophe is been accused by some judge members of allegedly trying to influence the judgement on Jacob Zuma rape charge 30/07/09 Photo: Oupa Nkosi

Many think South Africa has a fine system of justice.

The evidence is more mixed.

While the Constitutional Court has a strong reputation, the system as a whole has allowed President Zuma to flout the law (remember the 700 corruption charges?) and never be brought before a court.

He has relied on the “Stalingrad defence” – fighting to the last on every issue.

And the judicial system has allowed him to get away with it.

This is not the only instance.

Justice Hlope – the Judge President of the Western Cape – has a string of allegations against him. These include, most seriously, allegations that he attempted to influence members of the Constitutional Court when they considered charges against Jacob Zuma.

Now, at last, the pressure is building for Hlope to face justice. Will the legal system pass this test? Here are two useful articles – explaining how the Zuma logjam could now be breaking.

Martin


JSC must act now and remove Judge Hlophe

By Johann Kriegler• 3 February 2020

Source: Daily Maverick 

 

The time for pious legalistic platitudes has passed — if ever there was one. The problem created by Judge John Hlophe has to be confronted once and for all.

Last week, Judge Patricia Goliath, Deputy Judge President of the Western Cape, set off a judicial bomb when she levelled a number of serious complaints against her judge president, the well-known Judge John Hlophe. When the Cape Bar Council suggested suspending him, the chief justice demurred and a day or two later the secretariat of the Judicial Service Commission (located in the chief justice’s office) publicly rebuked unidentified busybodies for suggesting urgent action in the matter, telling them to mind their own business and leave the matter in its capable hands.

That course of events rings a loud and profoundly disturbing bell. One of Judge Goliath’s charges is that Judge Hlophe had tried to manipulate an important case in former president Jacob Zuma’s favour. Some 12 years ago the judges of the Constitutional Court levelled a tellingly similar charge against Judge Hlophe, complaining that he had lobbied two of their number to favour Zuma, an accused in criminal cases they were considering. Both charges, if proven, would clearly call for Judge Hlophe’s summary impeachment.

At the time, by agreement with the Minister of Justice, Judge Hlophe appropriately took special leave, but some eight months later, without reference to the minister and with the charge still very much hanging over his head, he turned up at the office and resumed control of the court. In the hope of galvanising the Judicial Service Commission into action, I produced an op-ed highlighting the grave rule of law implications of leaving a judge under such a cloud at the helm of a high court. This, in part, is what appeared in Business Day – 11 years ago, almost to the day:

“It is perfectly clear that Judge Hlophe has no right to return to work while the cloud remains over his head. Whether or not the minister has the legal power to compel him to do his duty is something altogether different. Duties are not duties only when they are legally enforceable; nor do they cease to be duties merely because they can be ignored with impunity. On the contrary, among honourable people many duties are acknowledged as binding obligations precisely because they are not legally enforceable. This is not lawyers’ talk but elementary decency applicable to all of us irrespective of our cultural or social differences.  

“In the case of a judge the position is even clearer. Judge Hlophe is not a junior clerk in government service subject to the supervisory powers of ordinary employment. He is a judge of the High Court, an appointment which our Constitution clearly regards as special. This gives us the assurance that our judges are men and women with the necessary personal and institutional independence to uphold our rights impartially and without fear, favour or prejudice. To this end the office to which judges are appointed is specially privileged. Unlike members of the national legislature or executive, judges are not answerable to the electorate and are not subject to periodic re-election. Unlike members of the public service, judges are not subject to civil service regulations, performance criteria or office hours. They do not rise through the ranks, are not subject to supervision or discipline at the hands of a superior, cannot be dismissed for incompetence or insubordination, and their salaries, allowances and benefits cannot be reduced. Nobody, not a judge president, not the chief justice, not the minister or even the president can tell judges when and how to do their jobs; and if judges fail to do their work diligently – or even competently – they cannot be fired (except in very special circumstances). 

“But these very important privileges are not personal privileges. They are privileges that attach to the office so as to protect judicial independence, and they go hand-in-hand with heavy obligations. What gives the office its special character is not that there are no obligations but that the obligations of judicial office cannot be enforced from outside. We rely for their enforcement on the integrity and self-discipline of the judge. 

“Accepting appointment as a judge creates a special kind of compact with society. While we entrust our judges with great freedom in the performance of their functions, they in return accept the onerous duty at all times to be worthy of such trust. Judicial ethics is therefore not about the enforcement of obligations but about integrity, restraint and the protection of the moral authority of the judiciary. It is about trust. 

….

“There are indeed many obligations that attach to judicial office. They do not need to be spelt out in a contract of employment because every judge knows – or ought to know – what they are and when in doubt can consult the Judicial Code of Conduct or a colleague for guidance. In principle a judge should always, not only in the discharge of official duties, act honourably and in a manner befitting judicial office. Nothing a judge does or does not do, on or off the bench, should bring the judiciary into disrepute. In the result, many things that ordinary citizens are entitled to do are not permissible for a judge. A judge should never be seen in a casino or a seedy club. A judge may not have a drink too many in a public place. Judges never become involved in politics. They avoid public altercations and litigation. They never comment publicly on court cases. Indeed, they should avoid the limelight at all times. Judicial independence is not licence. It has its own special framework of dos and don’ts by which judges are ethically bound. At the core of all these obligations is the obligation to preserve the integrity of the judiciary. 

….

“For the present the public clearly cannot be expected to accept that Judge Hlophe hears their cases or heads the administration of justice in the Cape High Court. While he stands accused by his peers of seeking to subvert the course of justice, he simply does not enjoy the requisite trust in his integrity. We are not concerned here with the presumption of innocence. The issue is public confidence in the administration of justice. 

….

“A judge president, besides actually hearing cases in court, exercises numerous discretionary powers affecting the interests of the public, the legal profession and the judiciary. The impropriety of the judge president’s insistence on occupying the office while accused of such a serious charge is all the greater. The suspicion alone disqualifies him. 

“The judge president has no more right to continue in judicial office than a suspected paedophile has to continue running a nursery school. Surely it would seriously undermine public confidence in the law enforcement system if a police station commissioner on bail for corruption were to remain at his desk pending his trial? And surely the need for public confidence is all the greater where we are dealing with the head of the judiciary in the Western Cape? 

….

“If his own conscience does not persuade him to stay away from his office, the Judicial Service Commission should be urgently convened to consider a recommendation to the President under section 177(3) of the Constitution that he be suspended from office pending the determination of the charge against him.”

Predictably, in 2009 Judge Hlophe’s conscience did not persuade him to stand down. Less predictably – but not surprisingly – the JSC’s response was a disgraceful cover-up. That nearly succeeded. Had the Supreme Court of Appeal, on Freedom Under Law’s urging, not ordered a reopening and proper inquiry, the matter would have rested there. But even the court order, condemning the JSC’s dereliction of duty as it did, was not enough. Over the years since then, and notwithstanding Freedom Under Law’s persistent efforts, nothing has actually changed. Somehow, whether by the ingenuity of his “Stalingrad” strategy, possibly also thanks to fecklessness and misplaced solidarity on the part of others, Judge Hlophe has been allowed to rule his roost for close on 12 years; this while all that was needed was to schedule a couple of hours to hear and test the veracity of Judge Hlophe’s explanation of his travelling from Cape Town to Braamfontein, only there to engage in unsolicited debates (one with a relative stranger) about a politically charged case that had nothing to do with him.

In the circumstances, the JSC can hardly expect the public to accept its pious assurances that the current matter will be dealt with appropriately. Its lamentable track record, not only in respect of Judge Hlophe but also in the equally notorious Motata case (where it irrationally overruled its own tribunal’s recommendation, letting Judge Motata off with a relative slap on the wrist) speaks for itself. Nor can it expect the public to be content with its proceedings (if any?) involving Judge Hlophe continuing behind closed doors. The judge’s conduct is a matter of grave – and entirely justified – public concern, his name a household word, seen more often in the media than in the Law Reports.

The public is also concerned about the conduct of the JSC. It has to rebuild public confidence from scratch. This is no time for dignified aloofness. Prompt and transparent action is needed to dissipate the toxic atmosphere on the Western Cape Bench. Manifestly the starting point – and hopefully the solution – is the urgent removal of the judge president, preferably by concerted peer pressure but, if necessary, by use of the constitutional and statutory suspension and removal mechanism available.

The time for pious legalistic platitudes has passed – if ever there was one. The problem created by Judge Hlophe has to be confronted once and for all.

Every day of inaction that passes further erodes public faith and optimism. DM

Johann Kriegler, a former justice of the Constitutional Court, chairs the civil society organisation Freedom Under Law.


Barnabas Xulu, Zuma/Hlophe lawyer, ordered to repay state R20 million in legal fees

By Marianne Thamm• 31 January 2020

Source: Daily Maverick

Attorney Barnabas Xulu, a friend of Jacob Zuma and lawyer to Western Cape Judge President John Hlophe, has been ordered to pay back about R20-million in legal fees funnelled to his firm by the Department of Agriculture, Forestry and Fisheries, which was entitled to free legal advice from the Office of the State attorney.

The significant judgment was handed down in the Western Cape High Court by Judge Owen Rogers on Thursday 30 January 2020.

The ruling serves as a warning to ministers, departments and other officials partial to giving work to legal friends. It is also a warning to those who ignore the State Liability Act. It was former Minister of Agriculture, Forestry and Fisheries (DAFF), Senzeni Zokwana, who had funnelled the work to Xulu’s firm.

Judge Rogers ordered Barnabas Xulu Incorporated (BXI) to repay DAFF by Thursday 30 April 202o, “the amount of R20,242,472, which it received pursuant to the invalid writs of execution and notices of attachment”.

Judge Elize Steyn issued the order for the writs on 16 June 2019 and by August the same year the sheriff had paid R17,657,098 – in accordance with the second writ – into the BXI trust account which Xulu then shifted to his business account “from which it was disbursed”.

“By 5 August 2019, only R203,515.97 remained in the trust account and by 6 August only R117,200.25 remained in the business account (though R3.4-million is available in the frozen forex account),” noted Rogers.

An interesting detail popped up in Thursday’s judgment, considering the storm brewing in the Western Cape division after Deputy Judge President Patricia Goliath accused Hlophe of gross misconduct.

Xulu has represented Hlophe in various matters including a pending JCC disciplinary hearing. He was also the legal representative in a case involving businessman Matthews Mulaudzi, who appeared before Hlophe as judge in a R48-million theft matter.

In 2017, SCA Judge Visvanathan Ponnan handed down a scathing judgment with regard to Hlophe’s conduct in the Mulaudzi matter. Ponnan not only pointed out the fact that Xulu was Hlophe’s personal attorney, but also that Hlophe had allocated the case to himself while he was not one of the duty judges.

Rogers’ judgment reveals that it was Goliath who had deliberated, in 2019, the application for a R20-million settlement entered into by Deputy Director-General (DDG) of Fisheries Management, Siphokazi Ndudane, and Xulu’s firm to be made an order of the court.

Xulu had been unhappy that Goliath, as the hearing judge, had correctly sought further information from National Treasury, the State Attorney, the NDPP, then Minister of Agriculture, Forestries and Fisheries, Senzeni Zokwana, as well as DAFF Director-General (DG), Mike Mlengana, about the deal.

“In the meanwhile, BXI had complained to the Judge-President that Goliath’s requirements went beyond what was reasonable. Goliath notified BXI on 20 May [2019] that in view of this complaint she would no longer be dealing with the case, which BXI could enroll in Third Division in the normal course,” Rogers noted in his judgment.

And that is how Judge Steyn came to hear the application and later grant the order in favour of BXI. It was this order by Steyn that Rogers had now rescinded.

Rogers ordered that the service level agreement “purportedly concluded between the applicant [DAFF] and the First Respondent [BXI] on 23 May 2017 is declared invalid and is reviewed and set aside.”

Another settlement agreement on 12 April 2019 was also declared invalid, reviewed and set aside.

Xulu was joined by Rogers as a Fifth Respondent in the matter and DAFF was ordered to verify BXI invoices by 9 April 2020. Xulu has until 12 March 2020 to “show just cause why he should not be ordered to pay the amount. BXI was also ordered to pay DAFF’s costs.

Rogers pointed out that Deputy Director-General: Fisheries Management, Siphokazi Ndudane had acted as Minister Zokwana ’s proxy in the department, bypassing DG, Mike Mlengana’s authority as the accounting officer. Ndudane had not been authorised to broker the settlement with BXI.

Remarking on Ndudane overstepping her duties, Rogers noted: “Officials who exercise public power are constrained by the principle, fundamental to our constitutional order and the rule of law, that they may exercise only those powers and perform only those functions which are conferred upon them by law.”

Apart from rescinding Steyn’s order, Rogers pointed out several breaches of the State Liability Act including that Xulu’s firm had only notified the new Minister, Barbara Creecy, after the first writ (a command from the court) had been issued and executed.

Rogers noted, the 30-day limit on the “satisfaction” of a final order had expired on 5 July 2019 without payment being made, an obligation of Treasury had not been triggered, and BXI had not been entitled to request the registrar to issue the writs of execution. The sheriff had also not been entitled to execute and attach money in DAFF’s bank accounts to pay BXI.

All of this was in violation of the State Liability Act, said Rogers.

A consideration “which weighs with me” said Rogers, was that BXI “was very much the author of its own misfortune. The greater part of the amount the firm would be obliged to refund – R17,657,098 – is money which the BXI parted with after it had been notified that the execution was non-compliant with the State Liability Act.

“With this knowledge, BXI disbursed the proceeds… with almost indecent haste,” said Rogers.

As a firm of attorneys working for the state, BXI, said Rogers, could reasonably have been expected “to be familiar with the provisions of the State Liability Act and thus the defect in the execution it had levied.”

It was difficult not to conclude that Xulu “caused BXI to part with the money” despite knowing that the writ had been invalid.

“If he did not bother to look at the State Liability Act, he would seem to have acted in reckless disregard of the legality of BXI’s actions, ie at least with dolus eventualis.

Rogers said “none of the requirements of the act were heeded.”

Rogers tore into the court’s registrars, saying it was a matter of concern that “writs were issued in this case without an inquiry into compliance of the State Liability Act.”

Rogers said he had consulted with the court’s chief registrar and it appeared as if the registrars in this division “may not be alert to the provisions of the Act”.

“There is no standard form for the written request contemplated in section 3 (6) of the Act. Attorneys who seek writs against national or provincial government departments must not make such requests unless there has been compliance with the Act, and registrars should not issue writs unless so satisfied.”

Rogers added that it appeared that the sheriff in this case also “did not pay proper heed to the provisions of ss 3 (7) and (8). Had the sheriff observed the 30-day holding period specified in 3 (8) the loss of the DAFF’s money might have been avoided.”

Some background to the inside job — it’s complicated, but here goes:

Before President Cyril Ramaphosa reshuffled Cabinet in May 2019, Zokwana was Zuma’s Minister of Agriculture, Forestry and Fisheries. The Department’s DG was Mzamo Mlengana.

While Mlengana had a “fraught” relationship with Zokwana, Deputy DG Ndudane had Zokwana’s support.

The Marine Living Resources Act provides for “the continued existence” of a fund called the Marine Living Resources fund which enabled the administration of the provision of the Marine Act. Mlengana was the MLRF’s accounting officer.

In October 2016, a memorandum of understanding was concluded between DAFF and Emang Basadi Legal (EBL) for the provision of legal services. DAFF, in its court papers, said this was “part of a move by the Zokwana faction to get rid of the State Attorney in Cape Town so as to enable private law firms to extract excessive fees from the dept.”

On 6 January 2017 EBL wrote to BXI stating that EBL had been instructed by DAFF to appoint BXI attorneys to assist pending litigation in which Viking Inshore Fishing was suing DAFF.

According to BXI, the DAFF had recommended that BXI apply to be added to the MLRF’s supplier database so that EBL could be dispensed with as an intermediary.

DAFF’s chief director of legal services, Kanthi Nagiah, “who had no complaint with the quality of service rendered by the State Attorney”, did not approve the sidelining of the office.

Although Mlengana had signed the MOU with EBL, he wrote to the firm on 2 February 2017 informing it that “proper supply chain management processes had not been followed in EBL’s appointment” thus rendering the contract invalid.

BXI said it continued working on the Viking case “because it was unaware of the termination of EBLs services”.

Rogers said that the DG had complained that Ndudane had continued to use EBL after the contract had been terminated. She had also continued to approve payments to the firm.

Zokwana had “promoted BXI’s engagement to assist in the DAFF litigation against Arnold Bengis and others”.

Bengis was the managing director of Hout Bay Fishing and in 2002 was ordered to pay R12-million and forfeit two fishing vessels to the South African Authorities for catching and illegally smuggling lobsters out of South Africa to the US.

In 2011 the US Court of Appeals handed down a landmark ruling ordering the company directors of the exporter in South Africa and the importer in the US to pay the South African government $54.9-million in restitution for the illegally harvested south and west coast lobsters.

In 2017 Zokwana had written to DIRCO to inform it that DAFF had mandated BXI, working with advocate Nomazotsho Memani, to initiate the restitution of the money to South Africa. Memani was Zokwana’s legal adviser.

In April 2017 BXI registered on the MLRF supplier database even while this “may have been irregular for lack of current tax clearance certificate” noted Rogers.

In May, the Service Level Agreement was concluded with Ndudane appointed as the “delegated authority” for DAFF. She would be the “first point of interface” and only she issued instructions to BXI. The drafters of the SLA were careful, noted Rogers, to bypass Mlengana.

All service providers were also requested to bill the DAFF in US dollars and this “remarkably applied to BXI itself” noted Rogers.

This is where it gets dense.

Mlengana claimed that he did not sign the SLA and that Zokwana had asked him, during a meeting in Cape Town, to sign only the last page of another document. The DG accused Zokwana of using this signature for a document “of a different character”.

Mlengana had earlier contested the validity of the appointment of EBL by DAFF on the basis that SCM processes had not been followed. This was also true of the BXI appointment, said Rogers.

“It was Minister Zokwana who was promoting the BXI appointment and had given it a mandate.”

The DG said in late July 2018 he had reported to the Hawks that his signature on the SLA was a fraud. He later terminated BXI’s services.

Suffice to say Mlengana was later suspended in June 2017 by Zokwana on charges of “gross misconduct”, a decision he challenged and won. Mlengana was “only freed” from Zokwana’s oversight “when there was a changing of the guard in May 2019” and Creecy was appointed minister.

While Mlengana was on suspension, noted Rogers, Ndudane, assisted by Nazima Parker, Director Supply Chain Management and Acting Chief Director of Financial Management, approved the paying of millions to BXI in legal fees.

From March 2017 to June 2018 these totalled R24.4-million.

Enter Shaun Abrahams.

Around June, Abrahams, then still National Director of Public Prosecutions, asked Zokwana to compile a report with regard to alleged “acts of undue influence, criminality and maladministration in DAFF”.

“This minister engaged BXI to produce the report,” noted Rogers.

While Mlengana had written to Zokwana to suggest using the State Attorney as the AG had made negative findings about the DAFF’s use of private law firms, Zokwana ignored this and issued a directive that DAFF settle with BXI.

Rogers’ judgment has exposed the illegal conduct of various senior officials in DAFF as well as Zokwana for his irregular appointment of Xulu. The consequences of Rogers judgment should be far-reaching not only for the future, but for those who have been implicated in the irregular appointment and payment of Xulu.