John Hlophe misconduct case still to be heard 12 years and R3.5m later – report

The gross misconduct complaint against Western Cape Judge President John Hlophe, which has been dragging on since 2008, could be indefinitely delayed owing to an unresolved two-year-long dispute over the state’s payment of his legal fees, Business Day reported.

Hlophe has reportedly received more than R3.5m in state funding for the legal costs of his impeachment inquiry with no requirement that he pay back the money if he is found guilty.

According to Business Day, the Department of Justice said a total of R3.5 million was paid to Hlophe’s legal team between November 2013 and October 2014, with R616 000 of this amount going to his attorney, Barnabas Xulu.

In 2008, the Judicial Service Commission (JSC) received a complaint that Hlophe allegedly attempted to influence Constitutional Court Justices Chris Jafta and Bess Nkabinde to rule in then-president Jacob Zuma’s favour in a case involving the legality of the erstwhile Scorpions’ search warrants for documents that would form the basis of the State’s corruption case against him, News24 reported.  Zuma subsequently lost the case.

Other allegations in complaints against Hlophe at the JSC include the following:

– Hlophe allegedly failed to declare income he received from the Oasis financial services group and negotiated a tax amnesty for his failure to pay tax on the money;

– Hlophe allegedly told a white lawyer in his office in front of a colleague: “You’re nothing but a piece of white s**t and it’s time you go back to Holland”;

– Hlophe allegedly told colleagues at a cricket match at Newlands that he assigned a school language case to Judge Wilfred Thring to “f*** it up and it can be fixed on appeal”, and

– Hlophe was criticised by the Supreme Court of Appeal in 2017 for allegedly ignoring a complaint of bias against him in a case in which his personal attorney, Barnabas Xulu, represented the applicant.

READ | Adriaan Basson | Is Judge John Hlophe above the law?

In addition, in January, Deputy Judge President Patricia Goliath lodged a 14-page complaint against Hlophe and his wife, Judge Gayaat Salie-Hlophe, accusing them of gross misconduct, which she charges compromised the proper functioning of the highest court in the province.

Among the claims contained in the document was that he attempted to influence the appointment of judges perceived as “favourably disposed” to Zuma to preside over the so-called Earthlife Africa case involving the nuclear deal, that he gave his wife preferential treatment, and allegations of assault and verbal abuse.

Climate of fear and intimidation

Judge Goliath said a climate of fear and intimidation prevailed in the High Court, where Judge Salie-Hlophe allegedly wielded enormous power, including determining her own working days and hours as well as having major clout in the appointment of acting judges.

ALSO READ | Hlophe takes on Goliath in scathing response to JSC complaint: ‘All the hallmarks of a paranoid judge’

“The procedure that Deputy Judge President Goliath followed in the filing of the complaint clearly suggest that her chief anxiety was to invoke public condemnation, the lynching of the judge president and to bring extravagant political pressure on him, even before the JSC dealt with the merits or demerits of the complaint,” Hlophe said in a responding affidavit, dated 7 February.

Responding to every paragraph in the complaint lodged against him, he argued the claims were based on false allegations or allegations that do not meet the constitutional standard for judicial misconduct.

This feud between Hlophe and Goliath was further fuelled by a ruling in January by the Western Cape High Court against Xulu to repay the State more than R20 million his firm received from the former Department of Agriculture, Forestry and Fisheries (DAFF) for work performed.

Xulu had earlier lodged his own complaint against Goliath at the JSC over her reluctance to issue an order that would result in him being paid the R20 million.

Judge Owen Rogers however ruled in favour of the department and ordered Barnabas Xulu Incorporated (BXI) to pay back R20 242 472 by 30 April.

Exorbitant fees

Business Day reports it has seen documentation that reveals that the state attorney’s office expressed serious concern about the allegedly exorbitant fees demanded by Xulu in Hlophe’s upcoming tribunal hearing – fees that were reportedly comparable to those of a senior counsel.

As a compromise, the state attorney’s office offered Xulu R20 000 per day for his services in representing Hlophe. Xulu reportedly did not respond to Business Day’s queries about whether he would accept this amount.

City Press previously reported that should Hlophe be found guilty, he would be at risk of becoming the first judge in democratic South Africa to be impeached.

– Compiled by Riaan Grobler