SCA slams Hlophe in judg­ment

CityPress - - News - LEANNE GE­ORGE and CHARL DU PLESSIS news@city­press.co.za

The Supreme Court of Ap­peal (SCA) has ruled that West­ern Cape Judge Pres­i­dent John Hlophe may have been bi­ased in a case in which he granted an or­der in favour of a busi­ness­man rep­re­sented by Hlophe’s own at­tor­ney.

In a judg­ment handed down this week over­turn­ing Hlophe’s rul­ing, the court held that there was rea­son­able ap­pre­hen­sion that “the judge pres­i­dent would not bring an im­par­tial mind to bear on the ad­ju­di­ca­tion of a mat­ter brought be­fore him by his at­tor­ney”.

The le­gal test for whether or not a judge is bi­ased is not just if the judge was in fact bi­ased, but whether a “rea­son­able ap­pre­hen­sion” ex­isted.

The SCA agreed and found that the pro­ceed­ings be­fore Hlophe would there­fore be a “nul­lity” and that the mat­ter could be sent back to a dif­fer­ent judge of the High Court to be prop­erly de­cided.

The case in­volves busi­ness­man Matthews Tuwani Mu­laudzi, who was rep­re­sented in the mat­ter by Barn­abas Xulu, the at­tor­ney who rep­re­sents Hlophe in dis­ci­plinary pro­ceed­ings over the al­le­ga­tion that he tried to im­prop­erly in­flu­ence two Con­sti­tu­tional Court jus­tices in a case in­volv­ing Pres­i­dent Ja­cob Zuma.

The com­plaint against Hlophe has now dragged on for al­most a decade and has raised se­ri­ous ques­tions about ju­di­cial ac­count­abil­ity in South Africa.

At the heart of the Mu­laudzi dis­pute is an in­vest­ment of R33.5 mil­lion he made with Old Mu­tual, which he later ceded to Ned­bank. Old Mu­tual mis­tak­enly paid the money to Mu­laudzi. Af­ter real­is­ing the mis­take, Old Mu­tual has been try­ing to get Mu­laudzi to pay the money back, which he has re­fused to do.

Old Mu­tual sub­se­quently re­ported the mat­ter to the po­lice and the Na­tional Pros­e­cut­ing Au­thor­ity (NPA), which ob­tained a pro­vi­sional re­strain­ing or­der pre­vent­ing Mu­laudzi or his wife from us­ing the money.

Mu­laudzi, rep­re­sented by Xulu, then ap­plied to court to have the re­straint or­der lifted. Hlophe granted the or­der, and then the NPA and Old Mu­tual ap­pealed. It was at this stage that the par­ties raised an ap­pre­hen­sion of bias and a dif­fer­ent judge was as­signed who granted them leave to ap­peal.

In a writ­ten re­sponse, Hlophe ar­gued that there was no rea­son­able ap­pre­hen­sion of bias.

“It would in­deed be an ab­surd, un­just and per­verse rul­ing to hold that Mr Xulu may not in­struct an in­de­pen­dent ad­vo­cate to ap­pear be­fore me sim­ply be­cause he hap­pens to rep­re­sent me in pend­ing lit­i­ga­tion in to­tally un­re­lated mat­ters,” he wrote in his sub­mis­sion. The SCA, how­ever, dis­agreed. In a unan­i­mous judg­ment penned by Judge Vis­vanathan Pon­nan, the court found that: “It must be ac­cepted, I be­lieve, 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 the re­la­tion­ship, the judge pres­i­dent would not bring an im­par­tial mind to bear on the ad­ju­di­ca­tion of a mat­ter brought be­fore him by his at­tor­ney.”

But the SCA held it was not just this re­la­tion­ship, but sev­eral other fac­tors which strength­ened the ap­pre­hen­sion of bias:

Hlophe was not one of the duty judges but al­lo­cated the mat­ter to him­self;

He dis­missed Old Mu­tual’s ap­pli­ca­tion for leave to in­ter­vene with­out al­low­ing him­self time to read and prop­erly con­sider the pa­pers;

He also dis­charged the re­straint or­der in cir­cum­stances in which he had not read the re­ply­ing af­fi­davit filed on be­half of the NPA;

When he sub­se­quently gave rea­sons he did not re­fer to “ma­te­rial ev­i­dence” in the af­fi­davit which con­tra­dicted Mu­laudzi’s de­fence.

The SCA also held that in a mat­ter that was “nei­ther easy nor clear”, Hlophe’s rea­sons ran to only six pages, and that the rea­sons given for the judg­ment are found in a “sin­gle para­graph”.

The SCA has or­dered the re­in­state­ment of the re­straint or­der.

TALK TO US Is Hlophe jus­ti­fied in de­fend­ing his de­ci­sion to hear this mat­ter, or is his de­fence fur­ther ev­i­dence of his bias?

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John Hlophe

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