In what purports to be an application seeking the recusal of Judge Owen Rogers, who handed down a scathing judgment against Western Cape Judge President John Hlophe’s lawyer, Barnabas Xulu, and his firm, Barnabas Xulu Incorporated (BXI), in January 2020, Xulu described judges’ complaints to the Judicial Service Commission (JSC) about Judge Mushtak Parker as “misconduct deserving of removal from the Bench”.

Xulu has asked for Rogers to recuse himself from presiding in an upcoming matter between the Department of Agriculture, Forestry and Fisheries (DAFF), Xulu’s firm and four other respondents.

In January, in a groundbreaking judgement, Rogers ordered that BXI repay R20-million in legal fees.

Xulu’s, as yet unsigned, notice of motion and affidavit for Rogers’ recusal must be viewed against the heated background and context in the division which has seen more than 40% of its judges collectively file a complaint with the JSC against Judge Parker.

The complaint against Parker relates to his initial alleged admission to several fellow judges that Hlophe had assaulted him in chambers in February 2019. Parker later “recanted”, saying that he had “misread” what had occurred between him and Hlophe.

The assault on Parker first came to light in a 14-page complaint in January 2020 to the JSC by Deputy Judge President Patricia Goliath. Goliath accused Hlophe of several instances of “gross misconduct” in having allegedly attempted to rig the bench as well as allegedly assaulting Parker.

Hlophe, in his more than 100-page affidavit to the JSC in response to Goliath’s complaint, denied that he assaulted Parker, saying that he had “cautioned” the judge in his chambers with regard to a matter involving his wife Judge Gayaat Salie-Hlophe and Parker.

Hlophe said that as “an African from KwaZulu-Natal and married to a Muslim woman” he had cautioned Parker “against being perceived to be inappropriate in his interaction with women colleagues”.

Apart from being at the centre of the Hlophe assault allegation, Parker has also found himself embroiled in another legal matter instituted by the Legal Practice Council with regard to an R8-million shortfall in the trust account of a law firm linked to Parker.

Xulu has subsequently also gunned for Goliath, lodging a complaint with the JSC after Goliath had been hesitant to issue the order for the payment of the R20-million in legal fees to his firm.

Goliath, Xulu said in his complaint, had advised him that a “lot of money” was involved and that this was making her “overly cautious in granting the order”.

The deputy judge president had requested further information surrounding the deal, including from Treasury, the state attorney, the NDPP, the then-Minister of Agriculture, Forestries and Fisheries, Senzeni Zokwana, as well as DAFF Director-General Mike Mlengana.

On 1 April 2019, Xulu and his senior counsel Thabani Masuku visited Judge Goliath in chambers in Cape Town in order to persuade her to execute the “settlement” allegedly agreed to verbally between the department and BXI.

When she asked for more documentary evidence, Xulu approached his other client, Hlophe, to intervene, which the judge president did, resulting in Goliath’s removal from the case.

The “settlement” was subsequently declared invalid and was set aside by Rogers. Rogers also ordered Xulu’s firm to repay R20-million in legal fees it had earned from DAFF, as it could have obtained the advice free of charge from the state attorney’s office.

Later, an illicit recording of a meeting between Xulu, Masuku and Goliath in her chambers was posted on 21 February 2020 to YouTube.

The intention of the public posting remains unclear, but if it was meant to somehow embarrass Goliath it has backfired as it proves the deputy judge president was correct in calling for more evidence.

Xulu in his affidavit, however, accused Goliath of discussing the case with Rogers and alleges, “It is highly likely that the consent settlement agreement was already raised with Rogers J following the appearance in chambers with Masuku SC and the DJP on 18 April 2019, and prior to the challenge being brought by the Department in August 2019 which creates a reasonable suspicion of bias by Rogers J in this matter.”

From this paragraph it is clear that the recording was posted in order to attempt to “prove” that Goliath and Rogers had somehow “colluded” against Xulu and BXI.

Daily Maverick has learnt that Goliath will raise the illegal recording of the conversation in her chambers with the JSC. There were only three people in the room and Goliath did not make the recording or give permission for it to be made.

Xulu’s attack on the judges and their “partiality” must also be viewed in light of an application by the Minister of Environment, Forestry and Fisheries, Barbara Creecy, in March 2020 to the Western Cape High Court for an order issued by Hlophe in September 2018 to be rescinded.

Hlophe, Creecy’s affidavit to the court revealed, had issued the order “in chambers” for Xulu to act as one of two “implementing agents” in a more than R100-million US repatriation settlement order.

Creecy’s notice of motion in the matter sets out an extraordinary series of events which led to former Minister of Agriculture, Forestry and Fisheries Senzeni Zokwana appointing Xulu to represent DAFF in a legal matter involving “Lobster King” Arnold Bengis. Creecy has said that Zokwana had no authority to appoint Xulu.

Xulu, in his application to have Rogers removed from hearing the case involving his firm and DAFF, said that the judges’ collective refusal to sit with Parker and to accept case allocations by Hlophe amounted to a “judicial boycott” which “bordered on witness tampering which is a criminal offence”.

By complaining about Parker, said Xulu, the judges had “engaged in conduct that is prejudicial to the effective and expeditious administration of the business of the court”.

“It is highly improper for a group of judges to conspire in dark corners to refuse to work with certain judges on the basis of personal dislike or because they have questions about his credibility as an alleged assault victim and potential witness in JSC proceedings,” Xulu said in his affidavit.

Xulu added that a “sitting judge sworn to perform judicial duties is obligated to accept cases allocated to him and exercise his judicial authority unless he is disqualified from doing so by legitimate factors”.

That the judge president is his client, and that it was he who issued an order “in chambers” seems to have not presented a problem to Xulu, or rendered him inherently unfit to appoint another judge in the matter.

Xulu said that Parker’s role as a judicial officer “has been nullified or reduced by his colleagues with the stroke of a pen and without the benefit of a due process hearing or JSC processes”.

Xulu, the judge president’s lawyer, said he had been advised that “these are extreme acts of gross misconduct and incompetence and a judge who engages in them renders himself inherently unfit to preside over anyone’s case”.

Xulu has asked the judge president to allocate a judge from another division to hear his matter.

That the judge president is his client, and that it was he who issued an order “in chambers” seems to have not presented a problem to Xulu, or rendered him inherently unfit to appoint another judge in the matter.

Also, how Parker and his alleged turn-about with regard to his allegations against Hlophe, as well as 12 judges’ complaint to the JSC about it, relates to Xulu’s own legal woes is not clearly set out.

The 12 judges have all acted within the required code of conduct with regard to reporting on suspected unethical behaviour. It is their duty to report such.

Xulu, who is one of the founders of the Jacob Zuma Foundation, accuses the judges of “making adverse findings” against Parker (a cursory glance at their affidavits to the JSC proves this not to be the case) and of using or lending “the prestige of the judicial office to advance the private interests of the judges or others”.

What these “private interests” might be, Xulu does not spell out.

However, Xulu adds, “Judge Parker has eloquently addressed the ambitions of Judge [Andre] le Grange who seek the destruction of the Judge President in his letter.” (See Daily Maverick story here.)

Judge le Grange was one of the first to break ranks on 1 March 2020 when he wrote to Hlophe personally about the Parker matter.

Le Grange did not hold back and suggested that Hlophe had been less than honest when he denied assaulting Parker and that Parker had, in fact, informed him personally, that “you viciously pushed him against a cupboard in his chambers”.

Xulu said that the judges who had complained about Parker had failed to do so “with proper procedures and respect for Judge Parker’s due process rights but they took a collective decision that adjudged Judge Parker as guilty and deserving of a boycott and simply communicated their decision to JP Hlophe after the fact”.

The reason why Rogers, by Xulu’s logic, cannot hear the case against his firm is Rogers’ “knowledge of the complaints against Goliath DJP and His Bias (sic) and Appearance of Bias (sic)”.

The judge president’s lawyer claims that Rogers had known that BXI had “complained to the Judge President that Goliath DJP’s requirements went beyond what was reasonable”.

“Judge Rogers’ actions in concert with other judges which targeted judge Parker because of his unwillingness to support DJP Goliath in her fight against JP Hlophe clearly reveals an attitude of partisanship and hostility to my client JP Hlophe at the very least.”

What this all has to do with the DAFF/BXI case, it is clear from Xulu’s affidavit, is no longer a concern. What concerns him is that Rogers “would not be fair and impartial in adjudicating the BXI case or mine”.

Hlophe’s lawyer termed the complaints by the judges to the JSC as “extra-judicial statements on politically contentious matters”.

He said that these complaints were “not appropriate if the judge’s involvement could reasonably undermine confidence in his or her impartiality on a matter that could come before the court, if it might unnecessarily expose the judge (and the judiciary) to political attack, or if the status of judicial office is used”.

Exactly what this “political attack” might be, Xulu left uncharted.

Xulu’s application to have Rogers recused from hearing the matter should deeply concern Chief Justice Mogoeng Mogoeng who has consistently said that he is unable, in any way, to step into the matter while the JSC is investigating several complaints, all from the same fraught division.

The question now is, will Judge President John Hlophe be able to hand-pick a judge from another division to hear a highly politically-charged case involving his own lawyer?

The DAFF/BXI matter is a hugely significant piece in the unravelling of the alleged “capture” of DAFF by politically-connected individuals who have benefited from years of endemic corruption in the department.

An investigation by Kimon de Greef, published by Groundup in 2018, showed how the country’s fisheries authority “was in a state of crisis, paralysed by a factional war between two most senior officials and hollowed out by a culture of corruption”.

“This has left the Department of Agriculture, Forestry and Fisheries (DAFF) unable to perform many of its most basic tasks, including allocating fishing rights and enforcing regulations. An exodus of skilled staff, including top scientists, has aggravated the problem,” wrote De Greef.

The rot at the department had been laid bare, he added, in a power struggle between the director-general, Mike Mlengana, and his deputy, Siphokazi Ndudane.

“Their rift has played out in a bewildering sequence of suspensions, court cases and accusations of criminality. Reporters, law firms, unions and opposition politicians have been drawn into the fray, sometimes unwittingly being used for factional agendas,” said De Greef.

Beneath it all is an ongoing “tussle for control of the department, which serves as the gatekeeper to the fishing industry.

“Generating some R6-billion annually, fishing is big business in South Africa, with a wide array of companies and interest groups jostling for access. Then there is poaching, a shadow economy worth hundreds of millions more.”

With such vast sums of money at stake, the department had become “a natural target for corruption. Like all government agencies, DAFF also issues tenders for big projects, ranging from construction to processing confiscated fish.”

The department had been compromised “at almost every level” by graft.

And this is the ghastly backdrop against which Xulu’s application must be viewed and into which he has drawn his client John Hlophe as well as the hapless Parker. DM