John Hlophe with the justice minister
The director general of the justice department, Nonkululeko Sindane, has been reported to the Public Service Commission for allegedly ignoring letters and deleting emails that urged the department to pay Western Cape Judge President John Hlophe’s legal bills.
Hlophe has been invited to attend a pretrial meeting of the judicial conduct tribunal next month. It was set up to deal with the complaint of gross judicial misconduct brought against him by judges of the Constitutional Court in 2008. If the tribunal rules against him, Hlophe could face impeachment.
His attorney, Barnabas Xulu, of the firm Xulu Liversage, said Hlophe was entitled, as a judge president, to have his legal bills paid by the justice department.
Xulu has lodged a complaint about Sindane with the commission because “her conduct was unbecoming” of the accounting officer of her department. The department still owed the law firm more than R2.3-million, plus interest, he said.
In his complaint to the commission Xulu wrote that Sindane had failed to afford Hlophe his “rights to just administrative action”.
“Kindly be advised that since 8 August 2012 to 21 February 2013, we have written 11 letters to the office of the director general of the department of justice and constitutional development, namely Ms N Sindane.
Hlophe’s misconduct
“The purpose of our numerous letters to the director general was to raise the issue of our outstanding legal fees amounting to around R2 391 666.57 (which are accumulating interest of 15.5% per annum) in the matter of the complaint against the Honourable Judge President J Hlophe by the justices of the Constitutional Court.
“The aforementioned director general has failed to respond to even one of our 11 letters that were forwarded to her office. We are aware that she has been reading our previous correspondence. Our last three emails that we sent to her office were deleted without being read.”
Hlophe’s legal bills were run up after a complaint was laid by seven of the 11 sitting Constitutional Court judges, who alleged Hlophe had tried to improperly influence two of its judges to rule in favour of President Jacob Zuma in a case involving the country’s multibillion-rand arms deal.
The complaint involved allegations of Hlophe’s misconduct during the course of two conversations, one between Hlophe and Justice Chris Jafta, and the other between Hlophe and Justice Bess Nkabinde.
According to its terms of reference the tribunal will investigate, make findings and report on whether Hlophe attempted to improperly influence Jafta and Nkabinde to decide matters that were pending before the Constitutional Court in favour of any of the litigants.
If they do find this to be the case, the members of the tribunal will also have to decide whether he is guilty of gross misconduct, as contemplated in section 177 of the Constitution.
Participate meaningfully
Chief Justice Mogoeng Mogoeng has now also stepped in to urge Justice Minister Jeff Radebe, in a letter seen by the Mail & Guardian, to pay Hlophe’s fees.
Mogoeng told Radebe that he had been approached again by Hlophe, who said his past legal fees had not been paid. “I write to make the point once again that it would, in my view, be appropriate to assist him, just as the Constitutional Court colleagues have apparently been assisted in this regard.
“Additionally, the judge president raises a concern that he may not be able to participate meaningfully in the proceedings of the judicial conduct tribunal if the department were not to pay his legal fees.
“Incidentally, I learnt from the deputy chief justice just yesterday that the state attorney wrote a letter assuring them of continued support. Minister, I urge you to please attend to the judge president’s legal fees, past and present.”
Xulu said Hlophe would be denied justice if his legal fees were not paid.
“If the justice department does not meet its obligations, the tribunal’s credibility will be tainted,” said Xulu.
Legal bills
The justice department spokesperson, Mthunzi Mhaga, said the department was not aware of any deleted email correspondence and, if there was any, it would be looked at “ASAP”.
Mhaga confirmed that Hlophe’s legal bills had not yet been paid. “Hlophe’s lawyers have been formally requested to tax their bill of costs and are yet to do so,” said Mhaga.
Xulu said he found the justice department’s response “strange” because he had never received a letter from the department requesting this.
“But I do have a letter from the state attorney’s office in Cape Town saying that the justice minister has not approved the payment of our client’s legal bills,” Xulu said.
“What has been compromised here is the equality of arms. The Constitutional Court judges will come in there well represented by the top lawyers of this country. The state attorney has already undertaken to pay for their fees and is doing so.”
Last year, Radebe revealed in Parliament that his department had paid more than R11.7-million for both Hlophe’s bills and those of the Judicial Service Commission since the Constitutional Court judges laid their complaint against him.
Meanwhile, the president of the tribunal has been named as retired Judge Joop Labuschagne. Eastern Cape High Court Judge Bonisile Sandi and an attorney, Noxolo Maduba, will assist him.
Xulu said he intended writing to Labuschagne to explain the problem of Hlophe’s outstanding legal fees, which would not allow him a fair hearing at the tribunal.