Judge Hlophe appeals Chief Justice Mogoeng’s ruling with a hefty stack of counter-accusations

Taking a page out of Jacob Zuma’s Stalingrad legal playbook, Western Cape Judge President John Hlophe has sought to delay facing three serious charges before a Judicial Conduct Tribunal.

Appealing a 3 July 2020 decision handed down by Chief Justice Mogoeng Mogoeng, Hlophe, in an affidavit dated 3 August 2020, set out a cumulative stack of cards, which he hopes will justify his plea for an appeal.

https://www.dailymaverick.co.za/article/2020-07-03-chief-justice-mogoeng-recommends-hlophe-face-misconduct-tribunal-dismisses-claims-against-goliath/
He accused Mogoeng of being blinded by his Christian faith, of being anti-Muslim, of embarking on an irregular decision-making process in considering Deputy Judge President Patricia Goliath’s complaint, that the Chief Justice was not authorised to adjudicate the complaint in the first place, that he had conspired with Goliath with regard to an alleged assault by Hlophe of Judge Mushtak Parker, that the Chief Justice was guilty of subversion, and finally, that “others” had attempted to persuade Judge Parker to lodge a “false” claim against Hlophe.

For this, the country’s Chief Justice should face impeachment, according to the Judge President.

Hlophe is also peeved that the Chief Justice ignored dealing with his question as to who would cover his considerable legal fees in the prolonged matter, and for dismissing a counter-complaint he had lodged against Goliath.

The fact that 10 judges in the division have subsequently sworn to affidavits about the alleged assault on Parker by Hlophe, in Parker’s chambers in February 2019, does not seem to have any weight, according to Hlophe.

As far as Hlophe is concerned this is all part of a big, fat, horrible, racist conspiracy.

Daily Maverick has reliably learned that while Parker has since been suspended by President Cyril Ramaphosa – in line with the Judicial Service Commission’s (JSC’s) recommendation, pending the findings of a Judicial Conduct Tribunal into gross misconduct – he is still being allocated work by Hlophe.

Parker was ordered by the JSC to complete all outstanding judgments prior to his suspension, but on Friday 20 November, in defiance of the president’s order, Hlophe allocated a pretrial criminal matter in the Western Cape High Court to Parker.

Parker is key to Hlophe’s success at countering the complaints against him.

Parker faces a further gross misconduct complaint relating to an R8-million hole in the trust fund of the legal firm he established, a no-small-matter fact he failed to disclose to the JSC when he applied to become a judge.

Hlophe was moved to appeal Mogoeng’s ruling after Daily Maverick published in May 2o20 that Goliath, in an affidavit to the JSC, had revealed that she had had a personal audience with Mogoeng in October 2019.

https://www.dailymaverick.co.za/article/2020-05-11-chief-justice-mogoeng-was-informed-in-2019-about-alleged-physical-and-verbal-abuse-of-judges-in-wc-division/

This Goliath said she had done “as required by the Judicial Code of Conduct” and because she had every right to report Hlophe’s alleged aggressive behaviour to the JSC. 

She had followed the correct procedures in doing so, she maintained. Two judges, she said, had also informed her about the alleged assault.

At that meeting, Goliath had played a recording for Mogoeng of Hlophe calling her a “piece of shit”.

In March 2020, Deputy Chief Justice Raymond Zondo, who chairs the Judicial Conduct Committee (JCC), designated SCA Judge Nambitha Dambuza (who is also a member of the JCC) to conduct an inquiry into Goliath’s complaint. The filing of Goliath’s responding affidavit was part of the ongoing inquiry.

However, says Hlophe, Mogoeng’s meeting with Goliath prior to the lodging of the complaint disqualified him from adjudicating it. 

“I would have no problem with a lawful and competent referral to the Judicial Conduct Tribunal,” said Hlophe, adding that Mogoeng had also “failed to have regard to the papers before him in deciding to dismiss my complaint”.

Mogoeng was not the chairperson authorised to deal with the complaints and it was in fact Deputy Chief Justice Zondo who had made the “first and initiating decision on the respective complaints”.

Zondo should have remained the chairperson and not Mogoeng, who had stated that he had become involved, “given that all Committee Members were disqualified from adjudicating the complaints”.

“It would appear that the Chief Justice recognises that it is an extraordinary intervention for him to replace the Deputy Chief Justice as chairperson of the JCC in regard to these complaints,” charged Hlophe.

Mogoeng, he added, had given no “factual or legal basis for this intervention and his authority to determine the respective complaints”.

The Chief Justice’s intervention on the “Rule of Necessity” was unlawful, said Hlophe, and therefore his ruling should be “set aside in its entirety”.

I advised the judge president that these allegations were false. The Judge President lost his temper and struck me with his fist on my chest, after repeatedly threatening to ‘fuck me up’.