12 years on: Judge Hlophe's judicial conduct tribunal postponed - again

The long-awaited Judicial Conduct Tribunal set to hear evidence about Western Cape Judge President John Hlophe’s alleged attempt to influence Constitutional Court Judges in 2008 in favour of former President Jacob Zuma has been postponed – again.

In June 2020 the JSC announced that the much-anticipated tribunal was set down to proceed between 16 to 30 October 2020. It has taken 12 years for the matter to finally reach this stage.

However, in a statement issued on 20 October, Sello Chiloane, JSC secretary, announced that the new dates set down for the hearing are 7 to 11 December.

This was because Hlophe’s legal representative in the matter, Advocate Courtney Griffiths QC, (the man who represented Liberian dictator Charles Taylor at the International Criminal Court) was unavailable. Also cited was Judge Chris Jafta’s ill health.

Griffiths, a high-profile Jamacian-born British barrister does not come cheap and there has been some negotiating his fee for representing Hlophe with the state attorney’s office.

Griffiths spent three years arguing in the ICC that former Liberian president Charles Taylor was not responsible for the horrors perpetrated during Sierra Leone’s 11-year civil war. 

In 2012 Taylor was convicted of aiding and abetting war crimes. He was cleared of ordering these atrocities, including rapes and amputations.

Griffiths has branded the ICC as a “racist tool of American foreign policy”.

Hlophe has previously argued that South African counsel would be reluctant to cross examine South African Constitutional Court judges – most of whom have since either died or retired. Griffiths would be unencumbered by this supposed anxiety, Hlophe has suggested.

The complaint against Hlophe arises from allegations that in March 2008, Hlophe had approached Constitutional Court Judges Jafta and Bess Nkabinde separately in their offices. 

There he is alleged to have informed them that he would be next Chief Justice, that they should consider their future and rule in favour of Zuma in a matter of the legality of seizures of 93,000 documents from various premises belonging to the soon-to-be president.

Since then it has been a long and winding road for a matter of “this magnitude” as former Constitutional Court Deputy Chief Justice, Dikgang Moseneke has written in his second book  All Rise – A Judicial Memoir.

It was Moseneke, then Chief Justice Pius Langa and nine other judges who lodged the complaint against Hlophe with the JSC. Hlophe immediately lodged a counter complaint.

As the case dragged on and South African taxpayers reportedly contributed, according to the Department of Justice, a total of R3.5-million in legal fees to Hlophe’s legal teams just between November 2013 and October 2014.

Hlophe’s South African legal representative, Barnabas Xulu, currently fighting a court order seeking to attach his assets for the repayment of legal fees owed to the Department of Agriculture, Forestry and Fisheries, received R616,000 of this.

There is an ongoing dispute with regard to the state’s payment of Hlophe’s  legal fees in the saga and whether he should repay these if a tribunal finds that he should be impeached.

This is not the only matter in Hlophe’s long list of dealings with the JSC.

In July 2020 Chief Justice Mogoeng Mogoeng announced that he had recommended that Hlophe face another misconduct tribunal with regard to the Judge President’s alleged assault of fellow judge Mushtak Parker. 

The complaint had been lodged by Deputy Judge President Patricia Goliath in January 2020.

Meanwhile, the JSC has since recommended that Parker be suspended and face a tribunal for providing conflicting versions of the alleged assault on him by Hlophe.

Over and above this, the Western Cape Judge President has been accused of improperly making rulings in favour of Xulu’s clients.

In 2017, the Supreme Court of Appeal, in a blazing judgment, found that Hlophe may have been biased when he reversed an NPA preservation order granted against Xulu’s client, Matthews Mulaudzi, without considering the state’s submissions.

Mulaudzi had fraudulently pocketed R48-million he was not entitled to. It is unclear whether the funds were ever recovered by Nedbank to whom the businessman had ceded an Old Mutual policy. 

Hlophe has also been charged by Minister of Environment, Forestry and Fisheries, Barbara Creecy, of granting an order “in chambers” benefiting Xulu’s firm, Barnabas Xulu Incorporated in a DAFF matter. 

The State Attorney, according to Business Day, had complained of Xulu’s R20,000 a day legal fee for his services representing Hlophe in his various battles with the JSC. DM