/ 5 April 2009

Hlophe’s ‘dogfight’ lawyer

The man at the centre of Western Cape Judge President John Hlophe’s legal strategy in this week’s Judicial Service Commission (JSC) hearing was selected because he knows how to ”fight in a dog fight”.

Hlophe’s confidant and University of Cape Town administrator Paul Ngobeni was responding to the Mail & Guardian‘s queries about Hlophe’s new lawyer, Barnard Xulu, a legal adviser and intimate of ANC president Jacob Zuma.

Xulu serves as the Friends of Jacob Zuma Trust’s administrator. He was implicated in a bogus assassination plot against Zuma in May 2007. Xulu denied any involvement, and police dropped the matter after an investigation.

”He knows how to fight in a dog fight and that is what you need,” Ngobeni said.

He dismissed suggestions that Xulu is employing, as previously reported by the M&G, the ”Stalingrad strategy” — that is, fighting opponents in every room in the long-running corruption and racketeering case involving Zuma.

But at this week’s hearing into alleged impropriety by Hlophe, who it is alleged attempted to persuade Constitutional Court Judges Bess Nkabinde and Chris Jafta to influence the highest court in the land to rule in Zuma’s favour in his battle with the National Prosecuting Authority (NPA), Hlophe’s legal team appeared to be employing that strategy, attempting at every turn to get the JSC to postpone the hearing.

The public had a close-up view of this strategy after South Gauteng High Court Judge Nigel Willis ruled that the media could attend South Africa’s first hearing with cross-examination into alleged misconduct involving a judge.

The JSC has previously relied on a procedure used mostly in motion court proceedings, which allows for adjudicators to make a ruling based purely on paper submissions.

Willis ruled that the JSC had failed to show good cause why the media and the public should be barred from attending the unprecedented hearing, and he declared, ”Publicity is the very soul of justice. It is the keenest spur to exertion and the surety of all guards against improbity. It keeps the judge himself, while judging, under trial.”

At Wednesday’s hearing, Hlophe team leader and junior counsel Vuyani Ngalwana, who gained acclaim for challenging the pension industry when he was the Pension Funds Adjudicator, fired the first salvo in its delaying strategy when he declared that Hlophe was suffering from ”a mischievous bout of influenza” and told the JSC that Hlophe’s instructions were that he should seek a postponement.

Counsels for all the Constitutional Court judges involved vehemently opposed this and told the commission that Hlophe had had ample time to prepare for the hearing.

Speaking to the M&G, Ngobeni repeated allegations that JSC complaints committee chair and Supreme Court of Appeal (SCA) president Lex Mpati had colluded with nine appeal court judges. They had overturned an earlier majority decision by the South Gauteng High Court that declared that by publishing allegations against Hlophe the Constitutional Court had infringed his right to dignity and his right to be heard. A letter detailing the allegations was sent to the JSC as grounds for postponement.

Hlophe’s hearing was postponed to Saturday.