JUDICIARY IN CRISIS
Judge President John Hlophe accuses Daily Maverick of waging a campaign against him – but here are the facts
Nary a day passes without Western Cape Judge President John Hlophe finding an opportunity to publicly accuse the media, and particularly Daily Maverick, of waging some form of a ‘campaign’ against him.
On a little-known YouTube channel and later on Newzroom Afrika, Western Cape Judge President John Hlophe placed Daily Maverick in the same naughty corner as Chief Justice Mogoeng Mogoeng, Western Cape Deputy Judge President Patricia Goliath and at least 10 other judges in the division who are deemed co-conspirators in a perceived “plot” to discredit the judge president.
Mogoeng and Goliath, said Hlophe, are perjurers who colluded to cook up a fake charge of assault against him. Hlophe has gone as far as accusing the duo of meeting secretly to set up Judge Mushtak Parker and coercing him into making a false allegation that Hlophe had assaulted him in chambers in 2019.
One of South Africa’s finest satirists, Pieter-Dirk Uys, used to regularly remind apartheid-era ministers and politicians that he did not need to make up anything for his shows as the government wrote his scripts for him.
So too Judge President John Hlophe who, since his appointment to head the Western Cape division in 2000, has starred as the central character in an ongoing drama that stubbornly continues to swirl around him.
Everything in the public realm is contained in copious court documents and affidavits, including Hlophe’s own tomes filed on various matters, including a complaint about Mogoeng to the Judicial Service Commission (JSC).
A fundamental problem with Judge Hlophe’s conspiracy theory is that none of the media coverage was dreamed up collectively in newsrooms across the country.
Take Judge Mushtak Parker’s own affidavit, for example.
Deposed on 25 February 2019, the same day that Hlophe is alleged to have strode into Parker’s chambers and assaulted him, it is pretty graphic.
Parker dictated the affidavit to his colleague Judge Eduard Wille (as Parker claimed not to be computer literate) and swore to it. It is now part of the JSC record in the complaint by Judge Goliath against Hlophe.
Hlophe, Parker said in his affidavit, had entered his chambers at around noon that day.
Parker was alone at the time and Hlophe had immediately begun shouting, accusing Parker of being racist and of seeking “to screw his wife”. (Judge Gayaat Salie-Hlophe – Ed)
“I advised the judge president that these allegations were false. The judge president lost his temper and struck me with his fist on my chest, after repeatedly threatening to ‘fuck me up’,” Parker set out.
Parker said he had fallen to the ground, “and in so doing broke the key that was in the cupboard housing some of my legal books”.
Parker has since suggested that he had “misremembered” what had taken place in his chambers. For this he will soon face a misconduct tribunal which will drill down and attempt to establish the truth.
The tribunal will have before it no less than 10 sworn affidavits from fellow judges attesting that Parker had maintained for over a year that he had been assaulted by Hlophe, before changing his recollection in an episode of magical thinking.
In the meantime, the JSC has recommended that Parker be suspended pending a Judicial Conduct Tribunal into charges of gross misconduct.
The “media” and Hlophe’s judicial colleagues, even those with the most florid imaginations, would be hard-pressed to come up with what has played itself out in real life in the division over the past 15 years.
Mysterious break-ins, an alleged assassination plot, an alleged physical assault on one judge by another, allegations of racism, sexual impropriety, sexual harassment and the concealment of an R8-million deficit in a legal trust account are just some of the threads.
The alleged assassination plot is contained in an official Judicial Inspectorate for Correctional Services investigation and the R8-million deficit in Parker’s legal firm’s trust account is contained in copious papers in a strike-off matter lodged by the Legal Practice Council.
Daily Maverick has merely done its job by reporting on these investigations and court actions – even though in the Parker R8-million trust fund matter court papers at first mysteriously went missing from the Western Cape court offices. A few days later, a fire at the Athlone offices of a firm linked to Parker destroyed documents. The SAPS came and took a sniff around.
These are all matters that have taken place in and around the confines of the building that houses the Western Cape Division which Hlophe leads. They have not been conjured up in newsrooms.
Inside the walls of other court buildings Hlophe has featured in a few scathing judgments by fellow judges.
In a 2017 Supreme Court of Appeal (SCA) judgment, Judge Visvanathan Ponnan found that Hlophe had not applied his mind in a 2014 matter involving the theft of R48-million by businessman Matthews Mulaudzi, who happened to be represented by Hlophe’s long-standing legal representative, Barnabas Xulu.
Hlophe, noted Ponnan, had at the time arrived at the court shortly after the conclusion of a meeting in his chambers with regard to the Mulaudzi matter.
On 18 September Hlophe, while he was not scheduled to do so, opted to hear the matter. Having done so, he “immediately dismissed the application for intervention with costs without furnishing reasons” in favour of Mulaudzi. Ponnan found Hlophe to have been biased.
“It must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial. The integrity of the justice system is anchored in the impartiality of the judiciary,” said the SCA.
It had to be accepted, said Ponnan, that “the long-standing professional relationship between the judge president and his personal attorney, who has represented him in various judicial and quasi-judicial tribunals since approximately 2009, and who continues to do so, in grave disciplinary proceedings, gives rise to the reasonable apprehension that in the light of the particular nature of that relationship, the judge president would not bring an impartial mind to bear on the adjudication of a matter brought before him by his attorney”.
In another SCA ruling in relation to the 2004 “New Clicks” matter between the then minister of health, Manto Tshabalala-Msimang, and pharmaceutical companies, Hlophe (along with Judge James Yekiso) ruled in favour of the government.
In that instance, SCA Judge Louis Harms found that Hlophe had unreasonably delayed his decision on an appeal application by the pharmaceutical companies.
Advocate Jeremy Gauntlett SC, who happened to have been one of the members of the legal team representing the pharmaceutical companies, was to later find himself one of the targets in a 43-page report on alleged racism in the division penned by Hlophe.
In 2008 it was not the media but fellow judges who moved to act on Hlophe’s alleged attempt to influence two Constitutional Court judges to rule in favour of the then newly elected president of the ANC, Jacob Zuma.
It is a matter that has dragged on at the JSC ever since, causing division, fear and loathing among judges.
In January 2020, Judge Owen Rogers handed down a judgment that Xulu repay some R20-million in legal fees earned through the Department of Agriculture, Forestry and Fisheries (DAFF) and a payment sanctioned by former minister Senzeni Zokwana, who was not entitled to do so.
In July 2020 Minister of Environment Barbara Creecy challenged the payment to Xulu’s firm, accusing Hlophe of issuing a legally questionable order, in chambers, in his lawyer’s favour.
Meanwhile, Eastern Cape Division Judge John Smith was roped in to hear a matter involving Xulu, so fraught is the Western Cape Division.
Smith dismissed on 1 September an application by Xulu to rescind a judgment that a service level agreement (SLA) between his firm and the DAFF was unlawful.
On 15 October, Smith granted an order for the sheriff of the Lower Tugela district to give effect to a second 12 October order authorising “all necessary steps, including enlisting the services of a locksmith” to open buildings situated at Sheffield Estate in Ballito, KZN and which belong to Xulu.
Xulu, after ignoring an initial 5 October order, forced the DAFF back to court where two further orders were issued as Xulu appeared to have gone AWOL.
Daily Maverick has reliably learnt that Hlophe has since written to Eastern Cape Judge President Selby Mbenenge requesting that Smith be removed from hearing Xulu’s matters. Smith has been replaced by Judge Selby Zilwa.
The propriety of Hlophe writing to Mbenenge to replace a judge in a matter involving, once again, his legal representative Xulu, is certainly questionable but it appears Hlophe is an unstoppable force.
The DAFF has declined to comment on the matter at this stage.
In his long and remarkable career trajectory it has been Teflon John who has been the author of his own dramas and it will be he who sees this long-running saga to its conclusion, whatever it may be.
We, the media, have merely recorded this for the annals of South Africa’s post-apartheid judicial history and how the JSC ran on the spot for more than 15 years while Hlophe abused institutions and colleagues at every turn. The honourable judge’s framing of our reporting as a conspiracy against him fits neatly with his other claims, such as that Mogoeng, as a Christian, hates Hlophe, as a Muslim, or that everyone else is acting in a racist rage, hellbent on destroying him.
As in so many conspiracy theories, Hlophe forgets that the only common denominator in all of them, and indeed the lowest one, happens to be him. DM
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