In unprecedented counterattack, Hlophe blames Mogoeng’s decision to send him to misconduct tribunal on anti-Muslim bias

Photo: Chief Justice Mogoeng Mogoeng (A file photo by Greg Nicolson)

By Marianne Thamm

7 Jul 2020

Western Cape Judge President John Hlophe has written to the Judicial Conduct Committee (JCC) accusing Chief Justice Mogoeng Mogoeng of bias and suggesting a decision to call for misconduct tribunal was motivated by an anti-Muslim sentiment.

This comes in the aftermath of widespread discontent with Chief Justice Mogoeng Mogoeng’s comments on Israel during a recent webinar hosted by the Jerusalem Post.

Through his legal representative, Barnabas Xulu, Hlophe informed the JCC on 7 July that he would be exercising his right in terms of section 17(7) of the Judicial Service Commission Act 9 of 1994 to appeal a decision by the chief justice.

On Friday 3 July, Mogoeng announced that Hlophe would face a misconduct tribunal and had a case to answer with regard to his alleged assault of Judge Mushtak Parker, his use of abusive language, and the abuse of power in the division.

These are three in a myriad of complaints of alleged gross misconduct lodged with the JSC by Deputy Judge President Patricia Goliath in January against Hlophe.

On 3 July Mogoeng dismissed all of Hlophe’s counter-complaints with regard to Goliath and it is this that appears to have irked Hlophe and seen the introduction of religion into the escalating dispute.

“Our client is Muslim, so is his wife and Parker J all who appear to have been the victims of a stinging rebuke and ruling of the chief justice,” said Xulu.

This comes in the aftermath of wide condemnation of the chief justice’s comments on Israel during a webinar hosted by the Jerusalem Post. A complaint against Mogoeng has been lodged in the meantime with the JSC by Africa4Palestine.

Xulu wrote that, “We are particularly distressed by the fact that Chief Justice Mogoeng’s action in the JSC proceedings follow immediately in the wake of his heated pro-Zionist political statements.”

These not only intruded into “the executive’s exclusive domain in matters of foreign policy but raised questions about our judiciary’s commitment to international human rights issues and possibly brought the entire South African judiciary into disrepute”.

The chief justice’s religious beliefs and statements that have “roundly been regarded as insensitive to the Palestinian cause” had given rise to “an appearance of lack of impartiality on the part of our Chief Justice in relation to persons who have religious identities shared by the Palestinians Muslims”.

Aiming even lower, Xulu wrote that the CJ had been “automatically disqualified from adjudicating the complaint of Deputy Judge President Goliath” as the two had had a “covert meeting” about the alleged assault by Hlophe on Parker.

Over and above this, Xulu charged, Mogoeng had been “influenced by the fact that he may well have nurtured a deeply spiritual relationship with Deputy Judge President Goliath with whom it is rumoured, he engaged in fervent prayers while she served at the Constitutional Court as an acting judge for a period of one and half years”.

It was this relationship, Xulu theorised, that had “swayed” Mogoeng’s sense of justice, fairness, impartiality and independence, “resulting in a biased and unjustified ruling” on his complaint.

Photo: Chief Justice Mogoeng Mogoeng (A file photo by Greg Nicolson)

Hlophe, said Xulu, considered it a “sacred constitutional duty of any judge to challenge a ruling that fails to uphold the elementary standards of justice”.

But wait, there is more.

The bias of the chief justice, said Xulu, was neither “curable nor condonable by any known legal principle in which impartiality and fairness are the inviolable hallmarks of an independent and accountable judicial system”.

Mogoeng had personally intervened in the matter being investigated by a panel of three judges and had said his failure to do so “would have meant the matter be left unresolved for a long time or forever”.

But, argued Xulu, the CJ had erroneously “sought refuge in the doctrine of necessity” to justify his decision to adjudicate Goliath and Hlophe’s complaints.

“To be clear, Chief Justice Mogoeng was not entitled to decide a matter in which, as a witness in the complaint against Judge President Hlophe, he was subject to automatic disqualification.”

The doctrine of necessity is “an ancient common-law doctrine that permits a judge to preside over a case from which the judge would otherwise be disqualified”.

Mogoeng, in his recommendation on 3 July, had attempted to pre-empt exactly this line of argument, stating that Goliath had correctly approached him as chief justice with her concerns and that even Hlophe himself had suggested she do so.

Mogoeng quoted Hlophe’s affidavit in which he stated, “If Goliath felt I have performed badly as a manager of this division by treating her (or her colleagues) with insufficient respect or poorly allocated matters between judges she should have approached the Chief Justice under the terms of the Norms and Standards for the performance of judicial functions.”

Because Goliath had gone to consult with Mogoeng, he was now a “witness” and as such could not decide on the matter, said Xulu,

Mogoeng could have appointed the president of the Supreme Court of Appeal to deal with the complaints and should not have stepped in.

Mogoeng had “single handedly abused both the enormous judicial power he wields and the rule of necessity to overrule a decision of the Judicial Conduct Committee simply because he disliked its outcome in so far as it did not dismiss Judge President Hlophe’s complaint against Deputy Judge President Goliath”.

This was a violation of Article 13 of the Code of Conduct for Judges which applies equally to the chief justice, said Xulu.

He claimed Goliath had submitted the complaint to the JSC based on “facts that she knew were false”.

Xulu said that Goliath “violated the principle of collegiality” when she recorded a meeting with Hlophe in which he used abusive language and which was submitted to the JCC as evidence.

Xulu perhaps forgot here that he himself, accompanied by his senior counsel, Thabani Masuku, had visited Goliath in chambers in Cape Town in April 2019 in order to persuade her to execute a “settlement” agreed to verbally between the department and Barnabas Xulu Inc.

A recording of this meeting between Xulu, Masuku and Goliath in her chambers was posted anonymously on 21 February 2020 to YouTube.

Xulu said Goliath had recorded Hlophe after she had “trapped him” into “saying something she knew would be used against him in judicial misconduct proceedings”.

Mogoeng’s dismissal of all the complaints by Hlophe against Goliath was “demonstrative of a biased mind” and would thus be appealed. DM

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