The office of the state attorney has rejected a request by embattled Western Cape Judge President John Hlophe for state legal funding for his high court bid to stave off impeachment, solicitor-general Fhedzisani Pandelani said on Friday.
Hlophe’s attorney of record, Barnabus Xulu on 1 September sent an email to the Western Cape office of the state attorney, asking it to extend the mandate of the legal team that represented the judge president on a complaint of gross misconduct before the Judicial Conduct Tribunal and the Judicial Service Commission (JSC).
Xulu further gave notice that since Queen’s Counsel Courtenay Griffiths may not be able to represent Hlophe further, a local junior advocate would be added to the legal team.
Griffiths has been representing Hlophe for much of the 13 years he spent fighting a complaint by the justices of the Constitutional Court after he allegedly attempted to influence two of them in the then-pending Jacob Zuma/Thint matter in 2008.
Because of the sums involved, the request had to be run past Pandelani, who described Xulu’s approach as informal and rather “unorthodox”.
He said he rejected it on the basis that the funding agreement had ended when the JSC in August confirmed the tribunal’s finding that his approach to justices Bess Nkabinde and Chris Jafta constituted gross misconduct deserving of impeachment.
Hlophe could in theory appeal to Pandelani’s office directly but has not done so to date.
The solicitor-general said the agreement to assist Hlophe had extended only to the conclusion of the matter before the JSC, and did not amount to a blank cheque that would cover any further action he might take.
At some point during the several briefs issued in the course of the misconduct saga, Hlophe was reluctantly obliged to accept a condition that should the matter be decided against him, he would be liable to repay the state.
After the tribunal headed by retired judge Joop Labuschagne in April concluded that Hlophe was guilty of impeachable offences, he unsuccessfully made representations to persuade the JSC otherwise. When it confirmed the finding of the tribunal, he lodged a review application in the Johannesburg high court.
In a follow-up email to the state attorney in early September, Xulu reminded the provincial office that the team’s fees had not been paid.
The matter is however complicated by the fact that Xulu owes the state attorney a lot of money.
The Eastern Cape high court in August held that Xulu was personally liable to repay more than R20-million in legal fees unlawfully paid to his firm, BXI, by the department of environment, forestry and fisheries.
This was after the Western Cape high court last year found that a service level agreement between his law firm and the department was unlawful.
At the time, Judge Owen Rogers ordered that the firm repay the money to the state, while noting that Xulu had been disbursing it at speed, leaving the department to return to court to hold him personally liable.
Pandelani said it was inconceivable that his office would pay over money to Xulu while he had not honoured an obligation to refund the state millions.
“It would be nonsensical to release funding while we are owed money and that matter has not been settled.”
The high court is set to hear the review application in mid-November.
Should the court find in Hlophe’s favour, Pandelani said, it could negate his obligation to refund the state for the money spent defending himself before the tribunal and the commission.
The state attorney’s office could not immediately give the sum total of legal funding provided to Hlophe in the course of the misconduct complaint involving the justices of the apex court, and the separate matter of mutual misconduct allegations involving him and Western Cape Deputy Judge President Patricia Goliath.