Analysis

The Goliath-Hlophe-Xulu Imbroglio

By Akuba Mokoena

DEPUTY JUDGE PRESIDENT of the Western Cape, Patricia Goliath, currently embroiled in a bitter war with Judge President John Hlophe, which includes counter allegations and counter complaints laid with the Judicial Services Commission (JSC) was among five candidates shortlisted to fill two vacancies on the Bench of the Constitutional Court.

Is it possible that the lost opportunity for her to get a seat as a judge in the highest court in the land – an opportunity that may have been lost due to a complaint lodged with the Judicial Services Commission (JSC) against her by attorney Barnabas Xulu and his firm BXI – could be at the centre of the events that have brought the entire Western Cape Division of the High Court into disrepute? Xulu happens to be Hlophe’s lawyer. 

Here’s an analysis by Khotso Molekane on the bitter battle within the Western Cape Division of the High Court https://uncensoredopinion.co.za/can-we-have-blind-faith-in-the-judiciary-to-police-itself/

Here’s a chronological order of events that have led to the standoff

February 2019: Judge Mushtak Parker allegedly told several judges in the division that Hlophe had assaulted him. He recanted in 2020 following a complaint by Goliath to the JSC in which among several allegations against Hlophe, she mentions the alleged assault. 

28 March 2019 Barnabas Xulu Incorporated (BXI), which had provided legal services to the Department of Agriculture, Forestry and Fisheries (DAFF) was owed over R20m for over a year. Its services included its successful recovery of over R100m which was owed to the department as a result of fraudulent activities in the fishing industry. A decision was taken in a meeting of 28 March 2019 with Accounting Officer General (AOG) and other stakeholders including representatives of DAFF to pay BXI an amount of R20m and the balance paid later. It was also agreed by the parties that BXI would refund any excess upon the DAFF’s verification of the invoices. 

The amount of over R100m was recovered in the case referred to by the department as the Bengis matter. 

Given the non-payment of over a year, BXI insisted the Settlement Agreement should be made a court order. This was agreed to by all parties concerned. 

3 April 2019: The Presidency announced Goliath was among five judges nominated “following the discharge from active service of former Deputy Chief Justice Dikgang Moseneke and Justice Bess Nkabinde”. But prior to the nomination she had been acting at the Constitutional Court for a year and returned to the Western Cape in April 2019. The five nominees were: Judges Annali Christelle Basson, Patricia Goliath, Narandran Jody Kollapen, Stevan Arnold Majiedt and Zukisa Laura Lumka Tshiqi.

17 April 2019 Goliath heard the unopposed matter between BXI and DAFF. Goliath raised several concerns around the settlement and requested more information on the deal before granting the by-consent order for payment of the R20m. It would take over a month of delays before Goliath was removed from the case and replaced by Judge Steyn. BXI later lodged a complaint with the JSC in this regard. 

Here’s a recording of the hearing between Goliath and BXI representatives. 

13 May 2019 BXI sent a letter of complaint to Hlophe on the conduct of Goliath regarding the by-consent order. 

20 May 2019 Goliath informed BXI their letter of complaint had compelled her to release the file. She effectively was no longer seized with the matter. 

The matter was allocated to Judge Steyn. 

6 June 2019 The by consent order was issued by Judge Steyn. On the same day, BXI sent DAFF, specifically Director General Mlengana, the court order and a certificate of balance of over R29m to be paid or further legal action would be taken. 

Mlegana then called Barnabas Xulu of BXI and confirmed the department would pay on his return from the US. He asked Xulu to accept his gesture as an olive branch which Xulu did. 

11 June 2019 BXI caused a writ of execution to be issued but it was not immediately served. When Xulu called Mlengana on his return from holiday and he didnt respond, BXI caused the writ to be executed. 

11 June 2019 The writ issued the sheriff to attach R20m from DAFF’s bank accounts

19 June 2019 An amount of R2 588 875,90 plus interest from 6 June 2019 was attached from Daff’s bank account

11 July 2019 An amount of R17 411 125 plus interest from 6 June 2019 was attached from DAFF bank account

13 July 2019 The third writ of R11 468 492 plus interest from 6 June 2019 was issued. However, the attached money has not been transferred to the sheriff or to BXI.

31 July 2019 the State Attorney wrote to BXI alleging that the process the firm had followed was unlawful, inter alia because of non-compliance with the State Liability Act 20 of 1957.

1 August 2019 the State Attorney’s Leon Manuel met with Mr Xulu and reiterated the State Attorney’s concerns that BXI has not complied with the State Liability Act. 

5 August 2019 DAFF lodged an urgent court application 

5 August 2019 BXI lodged a complaint with JSC against Goliath. It complained among others that Goliath had “needlessly” delayed the issuing of the consent order despite knowing their financial woes having not been paid for over a year. Here is the complaint Complaint JSC I DJP Goliath

1 September 2019: President Cyril Ramaphosa, in terms of Section 174(4) of the Constitution appointed Judge Zukisa Laura Lumka Tshiqi and Judge Stevan Arnold Majiedt as Judges of the Constitutional Court with effect from 1 October 2019. 

The President, as head of the National Executive, appoints Judges of the Constitutional Court following consultation with the Chief Justice and leaders of political parties represented in the National Assembly.

The Presidency makes these appointments after consulting the Chief Justice of the Republic of South Africa and the leaders of the parties represented in the National Assembly.

Goliath doesnt make it to the Constitutional Court. 

11 October 2019 Goliath meets Chief Justice Mogoeng Mogoeng and in that meeting informs him of her difficult relationship with Hlophe and allegations that Hlophe had assaulted two judges. In a statement issued by the Office of the Chief Justice (OCJ), the meeting between the two parties is confirmed. Here’s the full statement released by OCJ Media_Statement_Issued_by_the_Chief_Justice_Regarding_His_Meeting_with_Deputy_Judge_President_Goliath

Important issues emanating from this meeting, according to the Office of the Chief Justice are:

  • Confirmation that Goliath had told Mogoeng of her strained relationship with the Judge President
  • She did not indicate to the Chief Justice that she would be lodging a complaint with the JSC but indicated the allegedly assaulted judge would do so
  • She sought to establish if it was appropriate for Hlophe’s alleged victims to lodge complaints against Hlophe to the police and the Judicial Conduct Committee
  • The Chief Justice told her that any allegation of misconduct against any Judge must, in terms of the Code of Judicial 2 Conduct and the Judicial Service Commission Act, be reported to the Judicial Conduct Committee.
  • Additionally, any allegation of a commission of a crime must, without hesitation, be reported to the South African Police Services.
  • He also informed Deputy Judge President Goliath that failure by any Judge to report these allegations to the structures with the legal authority to address them, would be a betrayal of what Judgeship or the Judiciary is all about.
  • The Chief Justice stands by this position and would always encourage any alleged wrongdoing or alleged crime to be reported promptly.
  • As the Chief Justice has previously iterated, he never had nor has he now the legal authority to personally deal with these issues outside of the processes under the JSC Act. To suggest otherwise could either be actuated by nefarious reasons (e.g. a long standing desperation to find fault) or misapprehension of the law.
  • So far, none of those who have asked the Chief Justice to intervene in the Western Cape High Court could, when he pertinently asked them to, point to any provision in the Constitution, Judicial Service Commission Act, any other Act of Parliament, any Regulation or rule that empowers him to discipline a Judge or cause him or her to be suspended as many have suggested. Instead, they have suggested that he either pleads with Judge President Hlophe to go on leave or somehow use the “prestige’’ of his office to “normalise’’ the Western Cape situation. 

15 January 2020 Goliath lodges complaint of widespread misconduct by Hlophe. In it she accuses Hlophe of among others, influencing the appointment of judges and assaulting judges. 

30 January 2020 Judge Owen Rogers orders BXI to repay the R20m it received in payments for legal services rendered to DAFF. 

This is an unfolding story and we will update in future articles. 

 

 

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