Western Cape judge president John Hlophe is on the ropes.
He faces imminent suspension by President Cyril Ramaphosa after being referred to parliament for impeachment — and now there is a separate complaint of judicial misconduct that could also lead to his suspension.
This week the appeals committee of the Judicial Conduct Committee (JCC) — after more than two years — finally decided Hlophe should face a judicial conduct tribunal for his part in the confrontation with his deputy Patricia Goliath, which played out in public in January 2020.
A tribunal means potentially impeachable conduct and triggers the president’s power to suspend the accused — should that be recommended by the Judicial Service Commission (JSC).
There are two consequences to the appeals committee decision. First, unlike the earlier decision of JCC chair, former chief justice Mogoeng Mogoeng, the appeals committee also wants aspects of Goliath’s conduct in the row investigated.
That means Goliath may also face suspension and the Western Cape division of the high court may be left without a judge president or a deputy. Second, the JSC and Ramaphosa may, if they decide suspension is warranted for this second complaint, avoid the litigation hovering over the first matter.
The row between the two leaders of the Western Cape High Court is a sordid one, involving judge Gayaat Salie-Hlophe — also a judge in the division — and Hlophe’s wife.
More than 10 other judges of the court have also become embroiled. Goliath has made a host of accusations against Hlophe, including that he had assaulted his colleague, Judge Mushtak Parker, in his chambers.
It later emerged that Parker had said that, at the time of the assault, Hlophe had accused him of a flirtatious overture to Salie-Hlophe.
Goliath also made accusations about the way Hlophe ran the high court. They include him sidelining her and delegating his functions as judge president to Judge Taswell Papier when he was away at circuit court, in breach of the Superior Courts Act.
Goliath further alleges Hlophe involved his wife in the court’s administration — making the other judges uneasy. When she tried to address her concerns with him, he reacted aggressively, calling her a “piece of shit” and “rubbish”, Goliath said.
Goliath alleges that when she tried to address her concerns with Hlophe he reacted aggresively, calling her a 'piece of shit' and 'rubbish'
Hlophe said Parker would deny the assault. He denied swearing at Goliath and said their relationship of trust had broken down because she had meddled in his domestic affairs.
He accused her of incompetence, lying and of racism, saying she had called him an ugly old man, that she had referred to Africans as “k*****tjies” and that she had told Salie-Hlophe to drop his black surname.
When Hlophe denied swearing at her, Goliath produced a recording of the conversation. Hlophe then said her secret recording of their conversations was undermining him.
Matters got even messier when some of the judges of the division refused to share the bench with Parker and 10 judges laid their own complaint against him. They said that he had told them he had been assaulted yet was now apparently denying it. For this, the JCC decided that Parker should face his own tribunal and he was suspended.
Mogoeng, as chair of the JCC, dismissed Hlophe’s complaint against Goliath but said Hlophe should face a tribunal for his part in the affair.
Hlophe appealed in August 2020 and the appeals committee differed with Mogoeng, saying both Hlophe and Goliath’s conduct warranted investigation.
“If the allegations of racism against the DJP [ Goliath] were established, including the allegation that the DJP referred to some judges as ‘k*****tjies’ or that the JP [Hlophe] and Salie-Hlophe J lied in imputing the allegations to the DJP, gross misconduct could be proved either way.”
The JSC must now decide whether it agrees that a tribunal should be established along the lines recommended by the appeals committee.
In line with past practice, that would mean getting submissions from all the relevant parties. Should the JSC decide a tribunal is warranted, it would then need to decide whether to recommend suspension for Hlophe or Goliath, or both.
If it decides on both, the court would be leaderless — an unprecedented situation. However, justice spokesperson Chrispin Phiri said that Section 175(2) of the constitution empowers the justice minister to appoint acting judges to high courts “after consulting the senior judge of the court on which the acting judge will serve”.
This section isn’t limited to the appointment of non-judges for stints as acting judges, said Phiri. “If there is a vacancy of judge president or deputy judge president, it follows that one of the senior judges will have to be appointed as an acting judge president or acting deputy judge president as the case may be,” he said.
After Hlophe’s appeal to the judicial conduct committee, there was no new development for more than two years. What appeared to be an untenable state of affairs at the Western Cape division was endured by its judges and the court limped on.
Hlophe accuses Goliath of racism, saying she had called him an ugly old man, and referred to Africans as 'k*****tjies'
But in the meantime the JSC was dealing with the other, much older, complaint against Hlophe — that he had tried to influence the outcome of cases in 2008 that were pending before the Constitutional Court, relating to corruption charges against former president Jacob Zuma.
Hlophe was last year found guilty of gross misconduct and referred to parliament for impeachment. It is that 2008 complaint for which Hlophe now faces suspension by Ramaphosa.
The suspension is beset with complications. Hlophe has started litigation against it, but whether his court papers have been properly served on the JSC is in dispute.
More importantly, he has questioned the composition of the JSC at the time it made the decision to recommend his suspension — a potential vulnerability for the lawfulness of the decision because, given the long and turbulent history of the 2008 complaint, so many people have been involved and may have felt the need to recuse themselves.
Unlike previous cases — such as Parker’s — where Ramaphosa was quick to suspend once the JSC recommended it, Ramaphosa has been sitting on the JSC’s recommendation for nearly two months.
His spokesperson, Vincent Magwenya, signified a cautious approach, saying Ramaphosa “will want a very fair process before reaching a decision”.
The JSC has long been criticised from all sides on how it handled the 2008 complaint. From a procedural point of view, it could get things right this time, but the JSC isn’t known for its speed. It meets at the beginning of October to interview candidates for judicial appointment and this would be an opportunity also to make decisions on the Western Cape complaints.
If it doesn’t, the Western Cape court will continue to limp on and the true cost will only be counted in the months and years to come.
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