Hlophe ‘broke graft law’

Cape Judge President John Hlophe may have violated South Africa’s anti-corruption laws by taking payments from financial services firm Oasis. And the onus is on him to prove that he did not do so, say legal experts.

Two senior advocates and four other legal professionals told the Mail & Guardian that Hlophe may be vulnerable to prosecution under the Prevention and Combating of Corrupt Activities Act.

The Act, they suggested, contains language that could be interpreted as placing on Hlophe the burden of demonstrating that he did not favour Oasis in litigation at the Cape High Court while he was on its payroll.

The legislation, which came into force in April 2004, when Hlophe was still receiving a monthly stipend from Oasis, significantly tightens anti-corruption laws and clarifies their application to judicial officers.

It provides that a judge who accepts ‘any gratification for the benefit of himself in order to act personally in a manner that amounts to the biased exercise of any powers [or] amounts to the abuse of a position of authority or the violation of a legal duty or a set of rules is guilty of the offence of corrupt activities relating to judicial officers” is guilty of an offence. The maximum sentence provided for is life imprisonment.

Crucially, in certain circumstances the Act shifts the burden of proof to the recipient of the money, who in order to escape conviction must show that his or her conduct was not influenced by the benefit, legal experts said.

By Hlophe’s own admission he received monthly payments, first of R10 000 and later of R12 500, from Oasis as a trustee of an Oasis-administered retirement fund. The payments totalled R467 000 over a period of more than three years.

The payments took place while Oasis was litigating extensively in the Cape High Court, which Hlophe runs.

Public scrutiny has focused on the fact that he granted the company permission to sue another judge, Siraj Desai, for defamation. A judge cannot be subjected to civil action without permission from the judge president of his or her division.

The M&G revealed last month that Hlophe initially refused permission to sue, then changed his mind after sustained pressure from Oasis during a period when he was on the com­pany’s payroll.

Oasis has pursued at least five other cases in the Cape division during Hlophe’s tenure as judge president.

It was sued by the De Villiers Graaff Trust for negligence when, according to people familiar with the case, Hlophe was appointed the presiding judge and Oasis prevailed.

The second and third cases were restraint-of-trade cases brought by Oasis against former employees. In one, court insiders say, Hlophe appointed the judge and Oasis won.

In the other, Deputy Judge President Jeanette Traverso, who has clashed with Hlophe, ruled against the company. The M&G was unable to establish whether Hlophe appointed her to hear the matter, or she assigned herself in his absence.

In two other cases where it is unclear who appointed the judges, Oasis won one and lost one.

Hlophe has said he was granted verbal permission by former justice minister Dullah Omar to accept payment for outside work. However, the M&G has reported that Omar left the justice ministry more than a year before the retirement fund that paid Hlophe was created.

To focus on Omar, however, is to miss the point, says one senior advocate: ‘The point is that he should have recused himself from making a decision in which one of the parties was paying him money. That is in clear breach of the rules relating to recusal and is unbecoming of a judge.

‘One would have expected senior members of the Bars and senior judges sitting on the Judicial Service Commission to have seen the truly damning case against Hlophe — a flagrant conflict of interest. It’s clear that judges can’t be judges of judges. The JSC is letting down the judiciary.”

This week the JSC said a special meeting has been called on August 11 to deal with the Hlophe affair.

The JSC’s spokesperson, Milton Seligson, didn’t want to be drawn on the JSC pursuing legal action against Hlophe. ‘I am unable to comment on the merits of the complaints against Judge President Hlophe while the matter is still under consideration by the JSC. This includes your questions as to the applicability of the provisions of Section 8 of the Prevention and Combating of Corrupt Activities Act, No 12 of 2004, to the judge’s conduct,” Seligson said.

Since his appointment to the top legal job in Cape Town, Hlophe has been under investigation by the JSC on numerous occasions.

On each complaint the JSC has made a ruling supporting Hlophe.

In December last year the JSC said in a statement that it is not pursuing the Oasis matter any further. ‘After consideration of the evidence at present available to it the Commission decided that there is no evidence to contradict Judge President Hlophe’s assertion that he had received oral permission from the late Minister of Justice Dullah Omar. In the circumstances the Commission decided that no useful purpose would be served in pursuing the matter any further at this stage.”

Chief Justice Pius Langa referred requests for comment to the JSC.