- Western Cape Judge President John Hlophe on Monday rescinded the bail he had granted Anti-Gang Unit member Ashley Tabisher, after the NPA sought to reverse what it described as his “highly questionable” decision.
- According to senior prosecutor advocate Blaine Lazarus, Hlophe was “not apprised” of the fact Tabisher stands accused of involvement in a murderous organised criminal enterprise at the time he granted him bail.
- Tabisher’s lawyer, Bruce Hendricks, denied he “did anything illegal, wrongful or unlawful”, but the NPA is unconvinced.
Western Cape Judge President John Hlophe gave R5 000 bail to a police officer implicated in the murder of Anti-Gang Unit (AGU) detective Charl Kinnear without hearing any opposing evidence from the State.
Hlophe reversed that ruling hours after granting it, after the National Prosecuting Authority (NPA) filed an application for its rescission.
Among other things, the NPA argued Hlophe had ordered the release of AGU member Ashley Tabisher without actually knowing the serious nature of the charges he faced.
“The court was not apprised of the fact that [Tabisher] was charged with racketeering, money laundering and corruption – Schedule 5 offences for which [Tabisher] was to discharge the onus that it is in the interests of justice to be released,” senior prosecutor advocate Blaine Lazarus said in court papers.
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“If this [bail] order is not set aside on an urgent basis, [Tabisher] will be released from custody without proper judicial consideration.”
He stands accused of entering into an allegedly corrupt relationship with alleged Cape underworld kingpin Nafiz Modack and agreeing to receive R10 000 from him – with the promise he would alert Modack on any planned raids on his home.
Modack, Tabisher and five other accused are currently all facing charges related to their alleged involvement in an organised criminal enterprise that the State contends was responsible for the murder of Kinnear and a failed attempt on the life of criminal lawyer William Booth.
The enterprise also stands accused of conspiracy to possess explosives, corruption, extortion, intimidation, money laundering, kidnapping and the contravention of the Electronic Communication Act.
Some of the alleged members of the Modack criminal “enterprise” are currently in the process of applying for bail in the Blue Downs Magistrate’s Court, where Tabisher had also applied for his bail application to be separated from that of his co-accused – on the basis he is not an accused in the assassination of Kinnear and the attempted murder of Booth.
His lawyer subsequently went to the Western Cape High Court and asked that it urgently review and set aside the magistrate court’s decision to postpone that bail separation matter to 2 December – but then also asked that it grant Tabisher bail.
Despite seemingly being aware off the fact the Blue Downs Magistrate’s Court was dealing with the case, Hlophe nonetheless granted Tabisher’s bail application on Monday.
News24 has sent email queries to Hlophe’s registrar about his reasons for doing so, but had yet to receive an answer at the time of publication.
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Lazarus, meanwhile, heaped the blame for the Tabisher bail debacle firmly on the policeman’s lawyers, who he suggested withheld crucial information from Hlophe.
“The court [Hlophe] was not apprised of the fact that the State had adduced evidence to oppose bail, and that such evidence was under consideration by the court a quo and a judgment had not yet been handed down,” Lazarus said, before accusing Tabisher’s legal representatives of failing to properly notify the State of his intended bail application.
“The application, if it was served properly, would have strenuously been opposed.
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“In the circumstances, I respectfully submit that if the court had been apprised properly of all the facts of this matter, that it would not have granted an order as prayed for by [Tabisher]… Given the conduct of the matter by [Tabisher’s] attorneys, I respectfully submit that he should be ordered to pay the costs hereof on an attorney and client scale.”
Tabisher’s lawyer, Bruce Hendricks, strongly denied any wrongdoing.
Served
“They [the NPA] were served … and this order was granted in our absence. We were not party to these proceedings,” he said.
“I deny that I did anything illegal, wrongful or unlawful. I never forced any judge to make any decision or order. A judge had to apply his mind to the matter, which I believed he did. He granted the [bail] order.
“I am not going to leave this here, because my integrity is on the line.”
While Hendricks denied the State’s claims Hlophe had not been apprised of the fact Tabisher had been charged with racketeering and other Schedule 5 offences, News24 was unable to independently verify this, as the High Court file on the case did not contain his bail affidavit.
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Instead, it included a statement from his wife, in which she detailed her husband’s alleged health concerns and their young daughter’s emotional difficulties in response to her father’s incarceration.
Hendricks told News24 he had applied for bail for Tabisher on the basis of his worsening health and the fact “he is borderline for having a heart attack or a stroke”.
“It was on that basis that I approached the court to get him out,” he said.
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The Western Cape’s Director of Public Prosecutions (DPP) appears unconvinced by these claims and has written to Lazarus – through the assistant state attorney, Mark Owen – to question why the NPA was given delayed notice of the Tabisher bail application and to urge him to withdraw it.
“[T]he application was issued on Friday, 19 November 2021, however, no reasonable explanation was proffered as to why these documents could not have been served on the DPP, our office and other respondents by way of email – with respect, it is contrived to seek to serve an application by way of hard copy outside of business hours without arranging with the necessary parties,” Owen states in a letter to Hendricks.
“Your failure to do so cannot be construed as a bona fide error – your office had communicated with our client via email at 14:08 on 19 NOVEMBER 2021, and made no mention of your intention to approach the High Court.”
According to Owen, the Tabisher bail application was only served on the NPA after the case had been set down for hearing.
Like Lazarus, he also accused Hendricks of failing to put all the relevant facts about the bail application before Hlophe and contended the lawyer used legal technical tricks to ensure the case was heard on an urgent basis.
Owen also slammed Hendricks for prematurely providing Hlophe with a draft order that Tabisher be released on bail, despite knowing the NPA was fiercely opposed to his release.
“It is our view that this manifestly, given the conduct as highlighted above, demonstrates an opportunistic attempt at obtaining an order [for bail] in such terms in an irregular and impermissible manner,” he wrote to Hendricks.
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Anti-Gang Unit senior detective, Lieutenant Colonel Charl Kinnear.
Netwerk24 PHOTO: Melinda Stuurman
“Your office is well aware of our client’s stance in respect of bail, and had an obligation to inform the judge thereof. The submission of the above order to a presiding officer in these circumstances cannot be construed to have been done in good faith or on lawful basis.”
Hendricks told News24 he would not acquiesce to what he termed as the state attorney’s “intimidation tactics” and withdraw Tabisher’s bail application.
“I did nothing wrong.”
Lawfulness
Hlophe’s decision to immediately backtrack on his order would seem to suggest he does not share Hendricks’ faith in the lawfulness of the Tabisher bail decision, which he appears to have made without making certain the NPA was aware of the application.
Facing impeachment and fighting to overturn the damning gross misconduct findings made against him following a protracted Judicial Service Commission process, the last thing Hlophe needs now is yet another scandal over his conduct as a judicial officer.
But, given his status as the Western Cape’s most powerful judge, those questions are unlikely to go away.
This is also not the first time Hlophe’s use of his powers has put him in conflict with the NPA.
In a 2017 judgment, the Supreme Court of Appeal (SCA) slammed him for reversing an NPA-obtained order to freeze businessman Matthew Mulaudzi’s assets as part of the State’s efforts to prosecute him for a R48 million fraud case involving Old Mutual.
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SCA Judge Visvanathan Ponnan strongly criticised Hlophe for making “untenable” findings that the NPA had no prospect of convicting Mulaudzi, and ruling against the State without even reading its response to the businessman’s claims of innocence.
After pointing out it was “no small matter” that one of the litigants who questioned Hlophe’s alleged bias was the National Director of Public Prosecutions, Ponnan stressed the written reasons given by the judge president for his disputed ruling made no reference whatsoever to the NPA’s answers to Mulaudzi’s attacks on the State’s case against him.
Mulaudzi was represented by Hlophe’s personal attorney, Barnabas Xulu.
Three years after being slammed by the SCA over the Mulaudzi case, Hlophe again found himself facing accusations by Agriculture, Forestry and Fisheries Minister Barbara Creecy that he had granted questionable orders in favour of Xulu.
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Barnabas Xulu.
Gallo Images Nelius Rademan, Gallo Images, Foto24
Creecy’s case revolves around a September 2018 order granted by Hlophe, allegedly behind closed doors and not in open court, in which Xulu’s firm, B Xulu and Partners INC (BXI), was appointed as one of two “implementing agents” in a more than R100 million American repatriation settlement.
Creecy raised multiple questions in relation to that order, which was made in connection to US “Lobster King” Arnold Bengis’ criminal decimation of the West Coast rock lobster population.
That case, in which the NPA is a party, has yet to be resolved.
Finally, Hlophe is under fire for acquitting former ANC MP Bongani Bongo of trying to bribe advocate Ntuthuzelo Vanara into halting Parliament’s Eskom inquiry in February this year – without even requiring Bongo to testify in his own defence.
Acting Western Cape Director of Public Prosecutions Nicolette Bell said Hlophe misapplied the law on corruption nine times when he acquitted Bongo and had applied for leave to challenge that ruling in the SCA.
“I am of the view that public outrage against corruption and the impact that the findings have for the application for the law related to corruption are compelling reasons why the Supreme Court of Appeal ought to hear the appeal,” she stated.
That appeal application is yet to be heard.