On Sunday, 18 February, Parliament issued a statement confirming an affidavit had been filed in the Western Cape High Court responding to Judge President John Hlophe’s latest attempt to fend off the humiliating last lap of his controversial legal career.

Hlophe on 13 February lodged an urgent application requesting the court to interdict Parliament’s vote pending his application to the Constitutional Court challenging the findings of the Judicial Service Commission (JSC) tribunal.

The vote on Hlophe’s possible impeachment is due to take place this week, but it appears the jurist is not optimistic about the outcome, judging from his early attempt to have the process halted. President Cyril Ramaphosa suspended Hlophe in 2022.

In a statement, Parliament’s spokesperson Moloto Mothapo said current laws enabled it to proceed with the matter involving the removal of Hlophe and fellow judge Nkola Motata.

Read more in Daily Maverick: The Motata ruling – Structural and human problems behind failure of JSC to protect integrity of judicial system

Birds of a feather

Like the first candidate to face an impeachment vote in Parliament, former Public Protector Busisiwe Mkhwebane, Hlophe has argued before the apex court that he too is entitled to state funding for his legal bills. 

Hlophe’s bills for his almost 16-year strategic lawfare amount to an estimated R12-million.

The printing alone of the over decade-long court record had cost around R600,000, he had complained. Hlophe filed papers in the Gauteng Division of the High Court in Johannesburg claiming the government was “constitutionally bound” to provide funding.

Hlophe’s erstwhile lawyer, Barnabas Xulu, known for the “death-by-affidavit” tomes he has produced over the years in defence of his client on his long walk to impeachment, is also up to his eyeballs in legal woes.

In June 2021, the Legal Practice Council confirmed it was investigating Xulu and that the complaint would be forwarded to a disciplinary committee. This comes after Xulu was found guilty and fined R30,000 on three charges of contempt of court by Judge Mas-udah Pangarker that same year.

Xulu continues to represent Hlophe in his current shotgun-style volley of applications to the apex court as well.

The high-profile lawyer has been ordered to repay R20-million his firm B Xulu and Partners received in fees from the Department of Agriculture and Fisheries after a dodgy 2017 service level agreement was set aside by the Western Cape High Court in 2020.

Xulu, who was a founding member of the Jacob Zuma Foundation, has had his assets attached, including a home in Sheffield Estate in Ballito, KZN, as well as his Porsche 911 Carrera GTS.

Xulu made headlines during Mkhwebane’s Section 194 Inquiry when he launched an application to have evidence leader, advocate Nazreen Bawa, recused from the hearing. Using distilled Trumpian logic, Xulu attempted to link his costly fisheries blunder with Bawa, who was the prosecutor in the matter. 

We’ve seen all this before

In the reply to Hlophe’s latest attempt at setting legal booby traps, Parliament argued that it had no constitutional or statutory power to duplicate the work of the JSC by conducting another investigation.

This position was indeed confirmed by the high court in its 2022 judgment.

“Parliament views Judge Hlophe’s application as tantamount to ignoring the separation of powers and conflating the process into almost an appeal or review function whereby the [National Assembly] will have the power to override the JSC’s finding,” noted the statement.

This approach would negate the “pivotal role played by the JSC and ignore its constitutional importance and independence,” Parliament set out in its court documents.

Both Hlophe and retired judge Nkola Motata were found guilty of gross misconduct by the JSC, with Hlophe’s case dating back to 2008 when he was accused by Constitutional Court justices of attempting to influence that court’s judgment in the Thint/Zuma matters involving former president Jacob Zuma. 

Motata, on the other hand, was convicted of drunk driving in 2009.

The National Assembly is scheduled to consider the report of the Portfolio Committee on Justice and Correctional Services recommending that judges Hlophe and Motata be removed from the register of judicial officers on Wednesday, 21 February. DM