The 12-year-old gross misconduct complaint against Western Cape judge president John Hlophe threatens to be indefinitely delayed because of an unresolved dispute over the state’s payment of his legal fees that has been dragging on for nearly two years.
Hlophe has already 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 of gross misconduct.
In response to questions from Business Day, the department of justice said a total of R3.5m had been paid to Hlophe’s legal team between November 2013 and October 2014, with R616,000 of this amount going to his attorney, Barnabas Xulu.
The judge president faces an impeachment inquiry over allegations that he tried to influence two Constitutional Court judges to rule in favour of then ANC president Jacob Zuma, in a battle over the search and seizure of 93,000 documents that would form the basis of the state’s corruption case against him.
Hlophe is also involved, directly and indirectly, in another two complaints before the Judicial Service Commission (JSC).
In the first case, his deputy Patricia Goliath is accusing him of preferential treatment for his wife, judge Gayaat Salie-Hlophe, assaulting and verbally abusing two judges, and attempting to influence the appointment of judges seen to be “favourably disposed” to Zuma to preside over the Earthlife Africa case involving the nuclear deal the former president was pushing.
In a complaint to the JSC, Goliath also wrote of an environment of fear and intimidation at the high court. She also alleged that Hlophe’s wife was a “law unto herself”, determining her own working days and hours as well as playing a central role in the appointment of acting judges. Both Hlophe and his wife have denied the allegations and Hlophe has lodged a counter-complaint against Goliath with the JSC.
Hlophe is also indirectly linked to a second JSC complaint through his attorney, Xulu. The attorney has lodged his own complaint against Goliath over her reluctance to issue an order that would result in him being paid R20m in legal fees from the then department of forestry & fisheries. That order, which Goliath did not grant, was recently overturned. Xulu was ordered to pay back the money.
Hlophe has also twice been accused of improperly making rulings in favour of Xulu’s clients, in both cases in matters involving the National Prosecuting Authority (NPA). In 2017, the Supreme Court of Appeal found that Hlophe may have been biased when he reversed an NPA preservation order granted against Xulu’s client, Matthews Mulaudzi, seemingly without even considering the state’s submissions.
Three years later, Hlophe is facing fresh claims that he granted a legally questionable order that financially benefited Xulu’s firm, allegedly behind closed doors. Environment, forestry & fisheries minister Barbara Creecy is now bringing a court challenge to that September 2018 order, which made Xulu’s firm an “implementing agent” in a more than R100m US repatriation settlement.
There appears to be no urgency in resolving the Xulu fees saga, with the JSC’s secretary, Sello Chiloane, stating nearly two years ago that the department of justice was “engaging” with Xulu about the payment of fees.
Business Day has also 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 comparable to those of a senior counsel.
As a compromise, the state attorney’s office had offered Xulu R20,000 a day for his services in representing Hlophe. Xulu did not respond to queries about whether he would accept this amount.
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