Hlophe threatens to discipline judges who refuse to sit with colleague accused of lying

The Judge President came out guns blazing after 13 judges, or 40% of the division, wrote letters to Hlophe explaining why they refused to sit with colleague Judge Mushtak Parker, whom they accused of lying about an alleged assault in his chambers by Hlophe.

“Regardless of what your personal and/or partisan, views may be of individual judges (or of me, for that matter), it is incumbent upon all judicial officers not to bring the judiciary into disrepute,” said Hlophe.

This included “not making unilateral 'decisions' based on one's individual sense of morality, or undermining existing structures by attempting to unduly or improperly influence statutory structures and processes established for dealing with complaints”.

He said that any judge who refused to sit in a matter “assigned to him or her will be construed as a breach of the Code of Judicial Conduct and the necessary processes will be activated; I sincerely hope that such a course of action will not be necessary”.

It was around January that the deep unhappiness in the division became public when Deputy Judge President Patricia Goliath submitted a 14-page complaint against her boss, Hlophe, and his wife Judge Gayaat Salie-Hlophe to the Judicial Services Commission.

In her complaint, Goliath accused Hlophe of trying to influence the appointment of judges to the bench – particularly in the Earthlife Africa nuclear deal matter – as well as assaulting Parker in his chambers in February 2019.

At least 13 judges have since spoken out with regard to the alleged assault by Judge President Hlophe on Parker – which should this be proved   – would amount to an impeachable offence.

Hlophe has denied ever assaulting Parker and has said as much in his reply to the JSC and Goliath's complaint. The judges who wrote to Hlophe have all confirmed that Parker informed them, at various times, of details of the assault. Parker, they all maintained, went so far as to provide an affidavit under oath with the aim of lodging a criminal complaint against Hlophe.

Other judges in the division had persuaded Parker not to lay the charge against Hlophe and the sworn affidavit was then held in “safekeeping” by Judge Derek Wille.

Parker, in his response to the first judge to break ranks, Judge Andre Le Grange, said that in retrospect, he had “mispercieved” what had happened between him and Hlophe.

Writing to all permanent judges in the division Hlophe noted “although the views expressed are held by a minority of the judges in this division, the manner of publication, and or the tenor and tone of the correspondence is disconcerting to say the least”.

In deciding whom they would sit with in cases allocated by Hlophe, “the judges concerned are arrogating to themselves a power vested in me by virtue of my office as Judge President”.

There were consequences to this decision by the judges, he said, including that the appointment and discipline of judges is governed by statute and that as judges “we are all bound by the rule of law, the principles of legality and the rules of natural justice”.

“It is not up to individual judges to act as investigator, prosecutor, judge and executioner; this would be inimical to our very existence as judges and the manner in which we are to perform our judicial functions.”

Whatever their personal views, judges could not “simply take the law into his or her own hands”.

He added that the intended actions of the judges “may well be in breach of various provisions of the Code of Judicial Conduct”.

If judges were “free to select which colleagues they will sit with in a matter” the consequences could be “disastrous for the judiciary as a whole”.

“It could mean, for example, that judges who perceived other judges as being beneficiaries of apartheid or who express political views antithetical to their own, could then justifiably refuse to sit with such colleagues.”

Judicial independence, he said, “is not a private right or a principle for the benefit of judges as individuals and does not justify judicial misbehaviour or provide an excuse for failing to perform judicial functions with due diligence or for otherwise acting contrary to the Code of Judicial Conduct”.

He said he would like to remind judges that “the judiciary has a critical role to play in our fledgling democracy”.

Hlophe lashed out at the judges noting “with concern a recent tendency to undermine the basic, well-established communication protocols that have been in existence during my tenure as Judge President”.

In future “all matters of common interest” had to be directed through the Office of the Judge President.

“The tendency of some judges to usurp the powers of the Judge President by unilaterally sending correspondence to selected, or all judges, is unacceptable as it creates confusion and uncertainty on the status of such communications.”

As a last flourish, Hlophe reminded judges that “we recently achieved the accolade of being one of the best performing divisions in the country”. DM