Hlophe should face misconduct tribunal over Goliath's complaint - appeals committee recommends

21 Sep 2022

A Judicial Conduct Appeals Committee headed by Chief Justice Raymond Zondo has recommended that Western Cape Judge President John Hlophe face a misconduct tribunal. The decision will add to Hlophe’s legal woes as he faces imminent suspension by Cyril Ramaphosa as recommended by the JSC.

This in an attempt to mine the truth about an alleged assault by Hlophe on fellow judge Mushtak Parker in 2019 and attested to by 15 judges in the division.

Hlophe’s counter to the original revelations of the alleged attack was that Parker had misunderstood what had occurred in chambers.

The decision by the Judicial Conduct Appeals Committee this week relates to an appeal by Hlophe against two decisions by former Chief Justice, Mogoeng Mogoeng in an inquiry conducted in terms of section 17(2) of the Judicial Service Commission Act 9 of 1994.

Mogoeng had recommended to the Judicial Conduct Committee of the Judicial Service Commission (JSC) that a tribunal be established to investigate and report on the allegations made against Hlophe by his deputy, Patricia Goliath. Moegeng dismissed Hlophe’s countercomplaint of gross misconduct against Goliath.

Hlophe subsequently argued that Mogoeng had been biased, had been part of a “conspiracy” and had committed perjury when Goliath had consulted him about her complaint.

Chief Justice Raymond Zondo, acting head of the appeals committee, said he did not agree with Hlophe that Mogoeng had been disqualified when conducting a Section 17 inquiry.

“This assertion was premised on an erroneous understanding of the powers exercised by both the CJ and the DCJ in relation to the complaint,” he asserted.

Announcing the recommendation on Tuesday, appeals committee member, Judge Nambitha Dambuza, said the Chief Justice had investigated three complaints against the judge president and his deputy.

These were Hlophe’s alleged assault on Parker, the use of abusive language, and the withdrawal from Goliath, as deputy, of her powers and functions in the division.

Hlophe’s countercomplaint that Golaith had improperly leaked her January 2020 complaint to the media, and that she had improperly disclosed confidential information in a criminal matter, were dismissed as “unfounded” by the committee.

However, Goliath’s conduct with regard to alleged racist remarks, the sharing of information related to a criminal case, and the secret recording made during a meeting in 2019 with Hlophe, would also be determined by a tribunal, the committee found.

Alleged assault on fellow judge

With regard to the allegation of Hlophe’s assault on Parker, Zondo said the inquiry had considered affidavits filed by 15 judges in the division, which stated that, for more than a year (from 25 February 2019 to 7 February 2020), Parker had consistently informed them that his boss had assaulted him.

There had also been an unsigned affidavit taken by Judge Derek Wille, also from the division at Parker’s request, in which Parker described the alleged assault by Hlophe in detail.

Zondo reasoned that before the 15 affidavits were filed, Hlophe had accused Goliath of fabricating the incident and of relying on “rumour and gossip” in her multipronged complaint about Hlophe.

After the judges had filed their affidavits, however, noted Zondo, Hlophe had altered his response, claiming that Parker had accepted that his [Parker’s] perception of the alleged assault had been “influenced” by his “emotional” state.

Parker’s version, said Zondo, “required investigation by a Judicial Conduct Tribunal because many questions were left unanswered”.

Meanwhile, the JSC, in October 2020 already, recommended to President Cyril Ramaphosa that Parker be suspended pending the findings of a tribunal on charges of gross misconduct with regard to the alleged assault by Hlophe. Parker has been absent from the division for two years on full salary and benefits.

Hlophe’s mountain of woes

The decision by the committee this week will add to Hlophe’s legal woes as he faces imminent suspension by Ramaphosa after the JSC recommended in July this year that the president of the Republic do so.

This after Hlophe was found guilty by a tribunal in April 2021 of gross misconduct. The tribunal recommended impeachment for Hlophe’s attempt to to influence Constitutional Court judges in a matter involving former president Jacob Zuma in 2008.

Read more in Daily Maverick: “Suspend Western Cape Judge President Hlophe, Judicial Service Commission advises Ramaphosa”

After the JSC dispatched its recommendation to Ramaphosa, Hlophe, a Stalingrad legal strategy stalwart, hit back, challenging the JSC’s recommendation.

Since then he has continued to preside over the division.

The recommendation on Tuesday relates to charges originally lodged against Hlophe by Goliath. It also considered and dismissed a countercomplaint of racism by Hlophe.

Potty mouth

Hlophe had complained that Golaith had called him “an ugly old man; that she referred to Africans as ‘k*****tjies’; and that she urged his wife, Salie-Hlophe [Judge Gayaat], to drop his black surname,” said Zondo.

It was the Chief Justice’s view, however, that if Goliath had made these diabolical statements as alleged, Hlophe would have confronted her about them at their secretly recorded meeting of 2 October 2019.

This Hlophe failed to do. Zondo found there was no evidence to sustain the racism allegations against Goliath and that Hlophe did not respond to her “pointed rebuttal thereof”.

For these reasons the racism allegations were also dismissed.

With regard to Hlophe’s penchant for name-calling and swearing, Zondo said that while the judge president had at first denied having used abusive and derogatory language, he later changed his story.

This, said Zondo, was after a transcript proved his guilt, to which Hlophe had responded that if he had used the language it would have been justified and “understandable” because he had been “angry”.

Stripping of Goliath’s powers

On Hlophe’s alleged stripping of Goliath’s powers as his deputy, Zondo recommended “further investigation because the position of the deputy judge president and the powers attached thereto are founded in section 169 (3) of the Constitution and the provisions of section 6 (6)(a)(ii) of the Superior Courts Act.

The Chief Justice said that circumstances with regard to the position of deputy judge president in the Western Cape Division, including how previous incumbents had functioned, “required thorough investigation and reporting on by a tribunal”.

More on Mogoeng

With regard to Hlophe’s allegation that Mogoeng had not been impartial, Zondo added that the receipt of the report made by Goliath did not render Mogoeng “partial in relation to the relevant allegations”.

“Apart from the fact that there is no evidence that the CJ considered the merits of the complaint when the report was made to him… structural constructs of the JSC Act and the Judicial Code of Conduct entrust to the CJ, as head of the judiciary, the responsibility to receive formal and informal reports about challenges that confront Judges,” said Zondo.

In addition, the former Chief Justice was the statutory chair of the JCC which formally dealt with those complaints against judges that fell within the provisions of section 14(4) of the JSC Act.

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“This is all by design. Giving credence to bald assertions of bias, based on mere receipt by the CJ of reports of misconduct by Judges, would only serve to paralyse the judiciary disciplinary process,” said Zondo.

Hlophe’s assertion was that Mogoeng’s Christian religious persuasion had also tainted his judgement, but Zondo found “no evidence was tendered to show a Christianity-based and anti-Muslim decision-making pattern on the part of the CJ that would justify apprehension”.

The perceived strong Christian belief, on its own, was not sufficient to disqualify Mogoeng from adjudicating matters involving persons of the Muslim faith, said Zondo.

It was evident from the former Chief Justice’s recommendation that he had been satisfied that a complaint of gross misconduct would be established if the allegations were proved.

More potty mouth

On Hlophe’s alleged tirade against Goliath, Zondo said: “It is still not clear whether the JP admits or denies that he said to the DJP, ‘you are a rubbish and a piece of shit, get out of my office’.”

Hlophe, in his response, had initially focused “only on confirming that the meeting took place as alleged, that he asked the DJP to leave his Chambers and not to interfere in his marriage”.

After the release of the transcript, however, Hlophe did not admit or deny the allegation.

Mogoeng had previously stated: “To have it established against someone who occupies the exalted office of Judge President that he said to a woman DJP that she is ‘rubbish’ and a ‘piece of shit’, in an era when women abuse even at the workplace is reportedly on the rise, is likely to result in a finding that the JP is guilty of gross misconduct unless lip service is being paid to the fight against women abuse.”

The former Chief Justice added that “we Judges must lead by example in this connection. I say this alive to the fact that the JP’s alleged anger might well serve as sufficient mitigation to bring the complaint down to a level of seriousness that is below gross”.

The final order of the appeals committee reads:

“Save to the extent indicated below, the appeal against the recommendation by the CJ to the Committee in terms of s 17(4)(c) of the Judicial Service Commission Act 9 of 1994, is dismissed.

“To the extent indicated below the appeal against the dismissal of the countercomplaint by Hlophe JP against Goliath DJP in terms of s 17(4)(a), succeeds.
“The recommendation made by the Chief Justice in terms of s 17(4(c) of the Judicial Service Commission Act 9 of 1994 is set aside and replaced by the following:

‘It is therefore recommended to the Committee, in terms of s 17(4)(c) to consider recommending to the Commission that a Tribunal be established to investigate and report on:
‘The allegations of assault, use of abusive language, abuse of power in relation to the office of the DJP levelled by Goliath DJP against Hlophe JP; together with:

‘The allegations of racism, improper disclosure of information pertaining to a pending case, and the propriety of the secret recording made by Goliath DJP of the discussion between her and Hlophe JP at the meeting of 2 October 2019.’” DM

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