Hlophe showed bias for lawyer, appeal judge finds

THE Supreme Court of Appeal (SCA) has slated Western Cape Judge President John Hlophe for bias.

This week’s rebuke followed complaints by the national director of public prosecutions and Old Mutual over a multimillion-rand lawsuit in which Hlophe failed to recuse himself and ruled in favour of his own lawyer’s client three years ago.

The Asset Forfeiture Unit — which falls under the NPA — obtained a provisional order attaching Pretoria businessman Matthews Mulaudzi’s assets, but Hlophe discharged the order and dismissed Old Mutual’s application to intervene.

Mulaudzi is accused of defrauding Old Mutual of R48million. He enlisted the services of Hlophe’s lawyer, Barnabas Xulu, to save his multimillion-rand home and other assets worth about R30-million.

Although there were two other judges assigned to hear urgent applications, Hlophe decided to preside.

The prosecution and Old Mutual took Hlophe’s decision on appeal because they “reasonably apprehended” that he was biased because Xulu was defending Hlophe over a misconduct complaint against him by Constitutional Court judges.

In Tuesday’s judgment, Judge Visvanathan Ponnan nullified Hlophe’s ruling and sent the matter back to the High Court in Cape Town to be heard by a different judge. He also found Hlophe’s reasons for his decision insufficient.

“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 has continued to do so, in grave disciplinary proceedings, gives rise to the apprehension that in light of the particular nature of that relationship, the judge president would not bring an impartial mind to bear,” said Ponnan.

“In situations where the judge has a relationship with a party or a legal representative appearing before him or her, it is always appropriate for the judge to consider the degree of intimacy between himself or herself and the person concerned.

“The more intimate the relationship, the greater the need to be recused.”

Ponnan said the apprehension of bias was not limited to Hlophe’s relationship with his lawyer, but by the fact that there were two other judges assigned to hear urgent matters, but he allocated the matter to himself.

“What is more, in a matter that was neither easy nor clear, those reasons, when they were eventually delivered, only ran to some six pages. That fortifies the view, so it was submitted, that Hlophe . . . whether consciously or subconsciously, was partial to Mr Mulaudzi’s cause,” Ponnan said.

Xulu said he was disappointed with the SCA ruling. He said he was surprised his relationship with Hlophe was being magnified, because he did not appear in court, having briefed an advocate.

“I was not a party to this case. By the time this matter was heard in the SCA I had withdrawn as attorney of record. If given a chance and resources, I would have argued that the SCA judges are playing the man and not the ball here.

“The issue was only raised after Old Mutual lost the case and engaged the services of a senior advocate who has been trying to be appointed as a judge and could not make it to the Judicial Service Commission. He diverted the attention to this bias that does not exist.

“Advocate Craig Webster SC was appearing in this matter, he is white and has never represented the judge president,” he said.

“What are they saying about his conduct? The matter should be considered by the JSC.”

I’d have argued that the judges are playing the man and not the ball