The Supreme Court of Appeal (SCA) believes that the long-standing professional relationship between Judge Hlophe and his attorney, advocate Barnabas Xulu, gives rise to the reasonable apprehension that, in light of the particular nature of that relationship, the judge president would not bring an “impartial mind” to bear on the adjudication of a matter brought before him by his attorney.
The National Director of Public Prosecutions (NDPP) and Old Mutual had complained after Judge Hlophe failed to recuse himself in a multimillion-rand lawsuit in which Xulu had represented Mathews Mulaudzi, who was the defendant. Mulaudzi is accused of defrauding Old Mutual of R48 million.
Judge Hlophe discharged an order the NPA’s Asset Forfeiture Unit had obtained to attach Mulaudzi’s assets. He also dismissed Old Mutual’s application to intervene - a decision the applicants took to an appeal.
The SCA found that Judge Hlophe had misdirected himself in finding that there were no reasonable prospects of a successful prosecution in the matter, among other reasons.
Xulu was defending Judge Hlophe against a complaint of misconduct lodged by the Constitutional Court judges.
SCA Judge Visvanathan Ponnan said he had no doubt that the NDPP and Old Mutual’s complaint that they reasonably apprehended that the judge president did not bring an open and impartial mind to bear on the adjudication of the matter was justified.
“The learned judge president could only have reached the conclusion that there were no reasonable prospects of a successful prosecution in the matter if he disbelieved the evidence of the NDPP. But the evidence showed that Mr Mulaudzi was not entitled to the proceeds of the policy because of the outright cession he had entered into with Nedbank,” he said.
Judge Ponnan said the apprehension of bias was not limited to the fact of the relationship between Judge Hlophe and Xulu.
“The apprehension is strengthened by the following additional considerations: Hlophe JP was not one of the duty judges, but allocated the matter to himself. He then proceeded to dismiss Old Mutual’s application for leave to intervene on the turn, in circumstances where he had not afforded himself sufficient time to read and properly consider the papers before coming into court,” he said.
“He thereafter proceeded to discharge the rule nisi granted in favour of the NDPP, also on the turn, in circumstances where he had not had the opportunity of first reading the replying affidavit, which was filed shortly before the hearing. When he subsequently gave reasons for his order, he did not refer to the material evidence in the NDPP’s replying affidavit, which pertinently contradicted Mr Mulaudzi’s defence,” he said.
Judge Ponnan sent the matter back to the Western Cape High Court to be heard by a different judge.
Judge Hlophe did not respond to questions before deadline yesterday.