The state will continue to pay embattled Western Cape Judge President John Hlophe’s legal fees only if he agrees to repay them in full should he lose his Constitutional Court appeal, Justice Minister Jeff Radebe said on Tuesday.
“They must make an undertaking that should they lose the constitutional bid, the state must be repaid,” Radebe told a media briefing ahead of the justice budget vote in Parliament.
“That’s all, that’s the regulation. That’s what we have done with everybody.”
Ministerial spokesperson Tlali Tlali said the state had already disbursed R7-million to cover the costs of Hlophe’s litigation.
The judge had claimed more and the request was still being discussed as the exact amount due to him was in dispute.
“There is, however, an outstanding amount which represents the bill we have received in respect of the Supreme Court of Appeal litigation,” said Tlali.
“This amount has yet to be settled as there are differences of opinion in relation to how much must be settled,” he said.
Earlier, the director general of justice, Nonkuleleko Sindane, mentioned an additional figure of R3.5-million.
She suggested that Hlophe would have to repay the state the full R10.5-million should he lose his latest attempt to have the misconduct charge against him — dating from 2008 — set aside.
In April, the Supreme Court of Appeal set aside the Judicial Service Commission’s decision to clear Hlophe of gross misconduct, saying it was unlawful.
The conclusion, reached in two separate and unanimous judgments, reopened the dispute pitting Hlophe against the Constitutional Court judges.
They complained that he had sought to influence a ruling relating to the corruption charges that plagued President Jacob Zuma before the 2009 elections that brought him to office.
Hlophe has filed for appeal against both judgments, creating a conundrum for the judiciary by taking the matter back to the court where the complaint originated.
“A possible funding of the Constitutional Court appeal will, among other things, be reliant on Judge Hlophe’s willingness to sign an undertaking in terms of which he agrees to pay costs incurred towards the litigation, should the outcome not be in his favour,” said Tlali.
The same would apply for money to fight a new complaint brought by Freedom Under Law last month.
“This undertaking must be satisfied regardless of the party or parties against whom litigation is brought. It is therefore immaterial whether the litigation involves Freedom Under Law or any party for that matter,” said Tlali.
Hlophe’s lawyer Barnabas Xulu said last week that he had applied to the justice department for additional funding to defend himself against a complaint brought by the legal advocacy group at the end of May.
Freedom Under Law lodged a gross misconduct complaint against Hlophe, claiming he had made statements “unbecoming of a judge” while defending himself against the 2008 complaint by the Constitutional Court judges.
It said Hlophe was not fit to serve the public as a judge because of his “scandalous public utterances” about the judges. – Sapa