Cape Judge President John Hlophe.

The Department of Justice has said if Western Cape Judge President John Hlophe wants the State to pay his R10.5 million legal fees he must first sign an agreement that he will pay the government back if he loses his Constitutional Court litigation.

Hlophe faces having to foot his massive legal bill - R10.5m and counting - if he loses his Constitutional Court challenge to two judgments of the Supreme Court of Appeal, both of which rejected the Judicial Services Commission’s (JSC) earlier decision to abandon its probe into a gross-misconduct complaint against the judge.

Justice and Constitutional Development Minister Jeff Radebe said on Tuesday the State would foot Judge Hlophe’s legal bill - but only once he had provided a written undertaking to repay the State in the event that he lost his case at the Constitutional Court.

Referring to Judge Hlophe’s legal team, headed by Barnabas Xulu - who once administered the Friends of Jacob Zuma Trust in KwaZulu-Natal - Radebe said “the ball is now in their court”.

“They need to make an undertaking that, should they lose the Constitutional Court bid, the State must be repaid. That’s all. That’s the regulation. That’s what we have done with everybody and there is no exception to the rule,” Radebe said before delivering his department’s budget speech in Parliament on Tuesday.

Hlophe’s lawyer, Xulu, said on Tuesday he had not yet discussed the matter with Judge Hlophe of signing an agreement with the Department of Justice, so could not comment.

Justice director-general Nonkululeko Sindane said that the legal bill stood at about R7 million, but noted that the department had received a further request for R3.5m in assistance relating to Hlophe’s Constitutional Court challenge.

Responding to a question about whether Hlophe would be expected to repay the full amount - or only the cost of the latest constitutional challenge - the director-general said: “The correct position is that for any person that we provide legal support to, they have to provide an undertaking for the completeness of the settlement of the bill at the end of the process if they are not successful.”

The JSC in 2009 dismissed a complaint lodged by 13 justices of the Constitutional Court, including the chief justice, in which they accused Judge Hlophe of trying to influence two of their members in a case involving President Jacob Zuma.

The JSC dismissed a counter-complaint by Judge Hlophe, in which he claimed, among other things, that the complaint against him was motivated by “ulterior motives”. But in two instances the Supreme Court of Appeal found against the JSC, clearing the way for a fresh probe into Judge Hlophe’s conduct. – Political Bureau