Western Cape judge president John Hlophe told a Cape Town advocate he could tell his client to “f**k off” and that if his case was heard in open court he would dismiss it with costs, the advocate said in a complaint to the Judicial Conduct Committee (JCC).
The complaint by Anda Njeza — the third against the judge president — has been with the JCC since December last year. Njeza has heard nothing other than that the matter is “still being considered”.
Two other complaints against Hlophe, which have both reached a point where the judge president is facing suspension, are also languishing.
It has been four months since the Judicial Service Commission (JSC) recommended suspension over a complaint that Hlophe sought to influence the outcome of a 2008 Constitutional Court judgment. Yet President Cyril Ramaphosa has yet to make a decision.
It has been two months since the appeals committee of the JCC recommended a judicial conduct tribunal investigate possibly impeachable conduct in the stand-off between Hlophe and his deputy Patricia Goliath — a sordid fight that erupted in 2020.
The JCC appeals committee’s decision must be endorsed by the JSC before a tribunal is established and it is at this point that the JSC could recommend suspension for Hlophe and Goliath.
Despite the JSC saying in early October that this was an “inherently urgent matter”, nothing has been done.
One of the allegations in the Hlophe-Goliath dispute is similar to Njeza’s: Goliath alleges that Hlophe called her a “piece of s**t”.
JSC spokesperson Sesi Baloyi SC said Njeza's complaint and the Hlophe-Goliath dispute were with the chief justice as they involved a head of court.
Njeza said that on the day of a hearing, but before it had started, the judge president had called him, his opponent and their teams into his boardroom.
The case was about the return of a firearm confiscated by the police after a shoot-out between two taxi associations.
Njeza’s client, Ndlangalavu Mphumezi, had been arrested but was not charged with any offence.
Considering the seriousness and unprecedented nature of the exercise of suspending a senior judge [President Cyril Ramaphosa decided] to seek more clarity through a legal opinion
— President's spokesperson Vincent Magwenya
In his affidavit in support of his complaint,
The case was a mandament van spolie application — an application for the return of something, which does not require a possessor to prove lawful ownership.
However, when Hlophe called the parties in to his boardroom, he asked Njeza how Mphumezi had obtained his firearm competency certificate and said “he believed the competency certificate ... is a fraud”, said Njeza.
“He further informed us as the legal representatives present that he has many firearms and that that is not how one obtains a competency certificate according to his knowledge. The judge president further informed me that he would in any event dismiss the application with costs,” said Njeza.
According to his complaint, Njeza said that, even if the competency certificate was fraudulent, he still believed his client had a good case and the validity of the certificate was not an issue for the court to determine in a mandament van spolie.
But the judge president said there was a shortage of judges that day and this case was a waste of time, said Njeza. When Njeza insisted that his client wanted a hearing, Hlophe “kept telling me that I did not want to listen”.
When he said the case was important to his client, the judge president responded “that I should tell my client ‘to go f**k off’”.
“He then indicated that he would never give a taxi driver a firearm as he knows how dangerous taxi drivers can be,” said Njeza.
After 30 minutes of back and forth, the judge president said that “if I insist with going to court he will dismiss the application and make a costs order de bonis propriis against me, since I refused to listen to him,” said Njeza. A de bonis propriis order is a punitive costs order that makes the lawyer personally liable for the costs of the case.
Njeza also claims the judge president said he would keep the court file “because another judge may very well give me this firearm [order] if he allocates it to someone else”.
When Njeza pressed for “only 15 minutes” in court, Hlophe responded that he “is kicking us, everyone in the boardroom, out of his office”, said the complaint. Njeza said that even if Hlophe had dismissed the application, Mphumezi would then have been able to appeal it — preferable to a postponement.
He [Hlophe] indicated he would never give a taxi driver a firearm as he knows how dangerous taxi drivers can be
— Anda Njeza
Eventually, Njeza said he would tell his client what the judge president had said. But when he did so his client said he still wanted a hearing. So did the other side, he said.
An hour later, they wrote a letter to the court saying that Mphumezi wished to “exercise his rights to access to courts and have the matter heard in open court”.
The response from the judge president’s chambers was that an order would be emailed to them.
The order postponed the case “sine die” — to a date as yet undetermined — pending the final investigation involving the firearm. It allowed the parties to approach the judge president within three months.
The parties did not approach the judge president. Contacted by the Sunday Times, Njeza said he would not comment on the complaint as it is pending before the JCC. He said they did not go back after three months as he did not receive a clear instruction to do so from his attorney.
In his complaint, Njeza said: “I felt as a matter of principle that I should lay this complaint. A judge, let alone a judge president, should not treat any litigant or any legal representative with the kind of indignity the applicant and I were treated.”
He added that Hlophe’s conduct meant that his client was denied his constitutional right of access to court.
Hlophe indicated, via the Office of the Chief Justice, that he would respond on Monday. An update will be published as soon as a response is received.
Ramaphosa’s spokesperson Vincent Magwenya said that “considering the seriousness and unprecedented nature of the exercise of suspending a senior judge”, Ramaphosa decided to “seek more clarity through a legal opinion”.
“There was a slight delay in the procurement process for a service provider that will take the brief. Suffice to say, the president remains seized with the matter to ensure that any decision he makes is in line with due process and is found to be rational,” said Magwenya.
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