The Judicial Conduct Tribunal (Tribunal) established to investigate the alleged gross misconduct of Western Cape Judge President, John Hlophe in 2008 has confirmed that proceedings will again be postponed. The tribunal was scheduled to commence with hearings on Monday 21 October 2019.

The decision to postpone the hearing was made after it became clear that an agreement had not been reached on the proposed changes to the existing fee structure between the parties as well as the finalisation of outstanding amounts allegedly due to Hlophe’s attorneys.

Hlophe’s purportedly close ties to former president Jacob Zuma have been a contentious issue for the top judge.

In 2008, the full Bench of the Constitutional Court laid a unanimous complaint of gross misconduct against Hlophe, after he allegedly approached Constitutional Court Justices Bess Nkabinde and Justice Chris Jafta, in an attempt to improperly influence the court to reach decisions favourable to the then president.

Since then, amid protracted deliberations and delays in the tribunal process, Hlophe has remained comfortably seated in his position as Judge President

In a statement released on Friday evening, 18 October 2019, the Tribunal cited a dispute regarding legal fees as the reason for the postponement.

“The Tribunal is unable to commence with hearings due to an unresolved dispute regarding legal fees between the Office of the State Attorney and Judge President Hlophe’s attorney,” the statement read.

The Tribunal has confirmed that its president, Judge Joop Labuschagne “is exploring other avenues to ensure that the dispute is resolved to enable the Tribunal to convene as soon as it is practically possible and deal with this long outstanding matter”.

“Hlophe’s lawyers took the view that the 21st [October 2019] would only go ahead if a consensus was reached on the issue of fees. This had not been done and their position is that the date no longer holds, ” said Alison Tilley of Judges Matter, a coalition of civil society organisations who believe in the importance of judges.

Daily Maverick spoke to Mongezi Biko, the Acting Head State Attorney in Cape Town, who in 2013, became involved in proceedings relating to the Tribunal.

“In 2013 we entered into a Fee and Tariff Agreement, which set out the fees to be payable to Xulu Attorneys as well as the counsel that would represent Hlophe in the Tribunal that is currently pending,” he said.

“In July 2019, we were willing to revise the Fee and Tariff Agreement to take into consideration things such as the lapse of time, inflation and the rise of legal fees to ensure the amounts are market related. But Hlophe’s attorneys did not accept this as enough.”

While he refused to divulge exact figures, Biko confirmed that what the state was willing to pay was market related.

Barnabas Xulu of Xulu Attorneys Inc., who is representing Hlophe in all proceedings regarding the complaint of alleged misconduct, claims that the State Attorney is “thumb-sucking” amounts.

“There is law setting out tariffs, which clearly sets a certain amount for professionals when they are rendering services to the state. These rates are in the Government Gazette and why must I deviate from this?” he said.

“All that they have to do is say: this is the Gazette, this is your qualification, these are your years of experience and this is how much you are paid. This is not a thumb-sucking decision.”

But Biko says that what Hlophe’s attorneys are demanding is simply too much: “As the State Attorney we have a responsibility to speak within the financial precedents. We cannot pay at will, we must pay what is relevant and anything more than what we are offering to pay [Hlophe’s attorneys] is too much.”

Regarding the reason for the postponement, Xulu says the date was simply no longer available.

“When we parted ways in July, it was agreed that if this matter is not resolved by the end [of the month], then the dates allocated will not be available. Come the end of July and we could not resolve the matter, we filled these dates and they became unavailable.”

“We have a long history of disputes with this State Attorney. This is not only about going forward; there is still a huge amount that is outstanding that they simply do not want to pay,” he said.

Biko explains that at the time that he was mandated in 2013, there were several pending matters involving Hlophe and other parties that were unrelated to the hearing of the Tribunal.

“These matters relating to the establishment of the Tribunal, the JSC and all other litigation matters pertaining to Hlophe have a history of their own. When Xulu speaks about outstanding amounts, he is referring to those matters, handled by another attorney and not the Tribunal that is currently underway.”

“Hlophe’s attorneys have used these outstanding costs as reasons why the Tribunal hearing should not proceed. For me, these should not warrant a postponement – they relate to different matters entirely, ” he says.

According to Biko, bills of costs were drawn up in each matter and were due for taxation, which would allow for a final determination of an amount to be paid to Hlophe’s attorneys. However, disputes between the attorneys during 2013 and 2014 have prevented these taxations to date.

“But to ensure that there was progress in the matter, we paid to Hlophe’s attorneys what we felt was due and payable from the bills – what we felt was fair and reasonable legal costs,” Biko said.

According to Biko, this payment made up of about 60% of the full amount claimed.

“Hlophe’s attorneys would not accept this – they wanted the full amount. We have invited them, as the ‘creditor’, to set the matter down for a final determination to see whether they have actually been underpaid.”

Biko says that despite the state’s repeated requests to date, Xulu Attorneys has refused to do this.

Deliberations on Friday reached a standstill and it was eventually decided that the Tribunal hearing could not proceed.

The postponement follows a decade-long investigation into the alleged gross misconduct of Hlophe, which has experienced a number of delays preventing the matter from actually commencing before the Tribunal.

In 1995 and at the age of 36, Judge John Hlophe was the first black judge to be permanently appointed to the Western Cape High Court and in 2000, he was appointed as Judge President of the Division.

In 2008, a complaint of gross misconduct was laid against Hlophe after he allegedly approached Constitutional Court Justice Bess Nkabinde and Justice Chris Jafta in an attempt to influence the decisions of the court regarding a number of court cases involving Zuma.

It was alleged that Hlophe had tried to improperly influence the Court to decide in favour of Zuma.

The issue was deliberated among several Constitutional Court Justices who decided that; in light of the seriousness of the allegations and the potential threat to the judiciary, the matter should be revealed to the full bench of the Constitutional Court. A meeting was held where it was decided that the matter would be referred to the Judicial Service Commission (JSC) and in May 2008, a unanimous complaint was laid against Hlophe.

Hlophe responded with a counter-claim, arguing that the manner in which the Constitutional Court Justices had announced their complaint, was an infringement on his right to dignity.

In this time the Judicial Conduct Tribunal had been established and was scheduled to begin its investigation in 2013.

This has not yet happened, largely due to a string of litigation between Justices Nkabinde and Jafta against the Tribunal regarding Hlophe’s counterclaim and the fact that it lacks validity and any basis for an investigation by the Tribunal.

Litigation has continued in the High Court, Supreme Court of Appeal and the Constitutional Court.

In May 2016, the Constitutional Court dismissed the argument of Justice Nkabinde and Justice Jafta for the last time and the Tribunal was scheduled to finally commence on Monday, 2 July 2018.

But on this day, as the meeting convened, it became apparent that Hlophe was not present. The chairperson of the Tribunal, Judge Labuschagne stated that Judge Cagney Musi, a member of the Tribunal had received an urgent affidavit from Hlophe, requesting that he recuse himself from the Tribunal.

The affidavit alleged that Musi had in 2017, made disparaging remarks about Hlophe.

“It was reported to me that Honourable Mr Justice Musi uttered words to the effect that it was not surprising that I would act in the manner described in that judgment… as this was consistent with my controversial character”, said Hlophe’s affidavit, according to a Mail&Guardian article published in July 2019.

Musi denied the allegations but felt it best to recuse himself in the interests of justice and the judiciary.

Owing to the fact that the Tribunal is made up of three members, one of which was recused Musi, the Tribunal was postponed to afford Chief Justice Mogoeng Mogoeng time to appoint a replacement.

Judge Tati Moffat Makgoka was appointed to the Tribunal and the hearing was set to commence on Monday, 21 October 2019.

In the statement released by the Tribunal on Friday, 18 October 2019, it was confirmed that the hearing would not proceed due to a dispute regarding the payment of legal fees.

“Hlophe has employed Jacob Zuma’s Stalingrad strategy when it comes to facing the JSC inquiry into alleged misconduct. It is a case that had dragged on for almost a decade,” said Marianne Thamm in an article for Daily Maverick, in June 2017, which can be found here.

Lengthy delays and remarkably prolonged deliberations are not uncommon in the JSC.

On Thursday, 10 October 2019, the JSC found retired Judge Nkola Motata guilty of misconduct and ordered that he pay a fine of more than R1-million to the South African Judicial Education Institute.

This decision comes 12 years after Motata, in 2007 and while driving under the influence, crashed into the wall of a Hurlingham home.

This incident preceded two additional complaints of gross misconduct, including allegations that he had made racial utterances at the scene of the accident and later than he had acted unethically during his criminal trial, relying on a defence he knew to be untrue.

In April 2018, the Tribunal found Motata to be guilty of gross misconduct but despite its recommendations to the JSC that he be impeached, the JSC found – over a year later – that although he had had committed misconduct, it was not gross misconduct and the imposition of a fine was sufficient. The misconduct was committed in 2007.

Chief Justice Mogoeng spoke of the delays within the JSC in his address at the Judicial Accountability Session on 3 October 2019.

“Most cases of alleged misconduct against Judges have been speedily finalised, barring of course the Hlophe JP [and] Motata J matters… These have been the subject matter of a series of legal challenges that led to inordinate delays that nobody could have done anything about.”

During the subsequent press conference at the Judicial Accountability Session when asked whether he would decide on this dispute surrounding Hlophe’s attorney fees, Chief Justice Mogoeng responded that he could not intervene.

“Fees for Justice Hlophe are the responsibility of the Minister of Justice and Correctional Services. He has to decide that matter, not me.”

An alternative date for the recommencement of the Tribunal hearing into Judge Hlophe’s alleged misconduct has not yet been decided. DM