The Supreme Court of Appeal (SCA) has ruled that Western Cape Judge President John Hlophe may have been biased in a case in which he granted an order in favour of a businessman represented by Hlophe’s own attorney.
In a judgment handed down this week overturning Hlophe’s ruling, the court held that there was reasonable apprehension that “the judge president would not bring an impartial mind to bear on the adjudication of a matter brought before him by his attorney”.
The legal test for whether or not a judge is biased is not just if the judge was in fact biased, but whether a “reasonable apprehension” existed.
The SCA agreed and found that the proceedings before Hlophe would therefore be a “nullity” and that the matter could be sent back to a different judge of the High Court to be properly decided.
The case involves businessman Matthews Tuwani Mulaudzi, who was represented in the matter by Barnabas Xulu, the attorney who represents Hlophe in disciplinary proceedings over the allegation that he tried to improperly influence two Constitutional Court justices in a case involving President Jacob Zuma.
The complaint against Hlophe has now dragged on for almost a decade and has raised serious questions about judicial accountability in South Africa.
At the heart of the Mulaudzi dispute is an investment of R33.5m he made with Old Mutual, which he later ceded to Nedbank.
Old Mutual mistakenly paid the money to Mulaudzi.
After realising the mistake, Old Mutual has been trying to get Mulaudzi to pay the money back, which he has refused to do.
Old Mutual subsequently reported the matter to the police and the National Prosecuting Authority (NPA), which obtained a provisional restraining order preventing Mulaudzi or his wife from using the money.
Mulaudzi, represented by Xulu, then applied to court to have the restraint order lifted.
Hlophe granted the order, and then the NPA and Old Mutual appealed.
It was at this stage that the parties raised an apprehension of bias and a different judge was assigned who granted them leave to appeal.
In a written response, Hlophe argued that there was no reasonable apprehension of bias.
“It would indeed be an absurd, unjust and perverse ruling to hold that Mr Xulu may not instruct an independent advocate to appear before me simply because he happens to represent me in pending litigation in totally unrelated matters,” he wrote in his submission.
The SCA, however, disagreed.
In a unanimous judgment penned by Judge Visvanathan Ponnan, the court found that:
“It must be accepted, I believe, that the long-standing professional relationship between the judge president and his personal attorney, who has represented him in various judicial and quasi-judicial tribunals since approximately 2009, and who continues to do so, in grave disciplinary proceedings, gives rise to the reasonable apprehension that in the light of the particular nature of the relationship, the judge president would not bring an impartial mind to bear on the adjudication of a matter brought before him by his attorney.”
But the SCA held it was not just this relationship, but several other factors which strengthened the apprehension of bias:
- Hlophe was not one of the duty judges but allocated the matter to himself;
- He dismissed Old Mutual’s application for leave to intervene without allowing himself time to read and properly consider the papers;
- He also discharged the restraint order in circumstances in which he had not read the replying affidavit filed on behalf of the NPA;
- When he subsequently gave reasons he did not refer to “material evidence” in the affidavit which contradicted Mulaudzi’s defence.
The SCA also held that in a matter that was “neither easy nor clear”, Hlophe’s reasons ran to only six pages, and that the reasons given for the judgment are found in a “single paragraph”.
The SCA has ordered the reinstatement of the restraint order.
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