Hlophe costs: Minister Radebe has misled South African public
Despite repeated assurances to the contrary, Justice Minister Jeff Radebe has confirmed yesterday, in a reply (see below) to a parliamentary question, that Western Cape Judge President John Hlophe will not be required to repay the legal costs incurred in connection with the court cases brought by the Premier of the Western Cape and Freedom under Law.
Whilst many ordinary South Africans struggle on a daily basis to afford access to justice to prosecute very meritorious cases, Hlophe has managed to take a case to the highest court in the land at the expense of the South African taxpayer, with the full support of the Justice Minister. And he has done this all to protect himself from facing a misconduct enquiry as a result of complaints from Judges of the Constitutional Court.
This is contrary to what the South African public was told last year. It was reported that Justice Director-General Nonkululeko Sindane 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".
This was confirmed by Justice Minister Jeff Radebe on 7 June 2011 at a pre-budget media briefing, when he said that the ministry would pay for Hlophe's costs 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. He reportedly said "That's what we have done for everybody".
Hlophe lost his Constitutional Court case in March 2012, when he was refused leave to appeal against the two judgments of the Supreme Court of Appeal. These judgments overturned a decision of the Judicial Services Commission not to proceed with an enquiry into allegations of misconduct against Hlophe for trying to influence Constitutional Court judges in respect of corruption charges against Jacob Zuma.
Now, the Minister says he will not recover any of the money, reportedly in the region of R10.5 million, "in the light of the importance of the constitutional issues raised in the case".
In another parliamentary response, Radebe said that "when legal representation was granted to an official by the state attorney, the official was required to sign an undertaking to repay costs in the event he or she was found liable and if he or she had, among other things: intentionally exceeded his or her powers; not acted in the course or scope of his or her employment; acted recklessly or intentionally; made an admission detrimental to the state without consulting the state attorney; or failed to comply with or ignored standing instructions".
Trying to influence judges of the highest court in the country can hardly be said to be acting in the course and scope of Hlophe's employment. He could not have acted in any way other than intentionally, and if the allegations are correct, he certainly exceeded his powers. On what basis, therefore, can the Minister legitimately justify not claiming back the legal costs?
Nowhere does the policy referred to by Radebe mention cases where issues of constitutional importance are raised. In addition, the issues have not changed since last year. The Minister made no mention last year of any "important constitutional issues". He gave the clear impression that Hlophe would be required to pay back the money if he was not successful.
Radebe has clearly misled the public and the only conclusion one can arrive at is that this is an attempt to reward Hlophe for his efforts in trying to protect President Zuma.
This is the kind of behaviour that undermines confidence in the legal system.
We undoubtedly need a stricter policy regarding payment of legal fees by the state. The DA will push for such reform at every opportunity, as it is clear that the Minister cannot be trusted to administer public funds in the best interests of the country and the justice system.
Statement issued by Debbie Schafer MP, DA Shadow Deputy Minister of Justice and Constitutional Development, August 21 2012
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