Judicial conduct committee opts for inquiry into Hlophe/Goliath complaints

The outcome of the investigation indicates that two judges, Hlophe’s protégé, Judge Dumisani Zondi, and Judge Phineas Mojapelo, felt the complaint was not serious enough to be investigated by a tribunal, while dissenting Judge Nambitha Dambuza considered these serious enough to be impeachable.

Section 17 of the Act relates to an inquiry by the JCC which, should a complaint be proved, would be viewed as serious but not impeachable. 

However, a finding could still be made that either or one or both of the complaints “should be investigated and reported on by a tribunal”, said a statement by the JSC.

The complaint will now be referred to the chairperson for an inquiry under section 17.

On 9 March 2020, the JCC secretariat announced that it would consider a complaint lodged by Goliath against Hlophe’s wife, Judge Gayaat Salie-Hlophe and that SCA Judge Nambitha Dambuza would lead the inquiry.

Goliath lodged a 14-page complaint with the Judicial Service Commission alleging “gross misconduct” on the part of Hlophe as well as his wife, Salie-Hlophe. Their actions, said Goliath, had compromised the proper functioning of the Western Cape High Court.

Goliath accused Hlophe of attempting to influence appointments to the Bench, and of assaulting a fellow judge, while also claiming that Salie-Hlophe wielded unusual influence when it came to the appointment of acting judges in the division.

 Hlophe in a 100-page affidavit to the JCC dismissed the allegations as a complaint that had “all the hallmarks of a paranoid judge with little appreciation of collegiality, restraint, composure and confidentiality”.

He, in turn, accused Goliath of leaking her complaint to the media in a “malicious and bad-faith attempt to generate public outrage, lynching and condemnation of my leadership of the division that would support calls for my immediate suspension and removal”.

On Tuesday the JCC said: “In reaching this decision, the majority, as per Justices Zondi and Mojapelo, held that on the available evidence and in the absence of Goliath DJP’s response and representations which is the material that the Committee had to consider at its meeting, an inquiry in terms of section 17 was required. 

“They reasoned that following the section 17 inquiry, a finding could still be made that either one or both of the complaints should be referred to be investigated and reported on by a Tribunal.”

In her minority decision, Justice Dambuza felt that both the complaints warranted a referral to the Judicial Service Commission with a recommendation that the complaints be investigated by a Judicial Conduct Tribunal. 

She held that both complaints alleged “extremely serious misconduct by the Judges that, if established, would have had a seriously negative impact, not only on the direct victim thereof, but the wider Judiciary.”

In terms of Section 17 of the Act, an inquiry “need not necessarily be a formal inquiry but may be a formal inquiry if the Chairperson or member of the Committee designated to conduct it decides that it should be formal”.

The inquiry would be inquisitorial in nature and there would be no onus on any person to prove or disprove any allegation of fact. 

At its conclusion the chairperson could either dismiss one or both complaints or find that either one or both complaints had been established and that the respondents have behaved in a manner “unbecoming of a Judge”. 

In this case it would impose the “remedial steps” which include an apology, a reprimand, a written warning, or “any form of compensation or counselling on the respondent”.

Furthermore the chairperson could also recommend to the JSC that one or both of the complainants be investigated by a Judicial Conduct Tribunal.

According to the Helen Suzuman Foundation’s brief on mechanisms to hold the judiciary to account, Section 177 of the Constitution ultimately governs the removal of a Judge. These grounds include “incapacity, gross incompetence, or gross misconduct”.

“If the Committee decides that the conduct may warrant impeachment, then a Judicial Conduct Tribunal (“Tribunal”) will be convened and, based on the Tribunal’s report, the JSC will decide whether the criteria for impeachment are met.”

Should a tribunal find that the judge should be impeached, it would then refer the finding to the National Assembly where a two-thirds majority vote for impeachment would result in the judge being formally removed from office by the President.

“If the National Assembly does not vote in favour of impeachment the Judge may still be sanctioned for lesser misconduct. Such punitive measures include an order for an apology, a reprimand, counselling or training.”

The decision by the JCC with regard to Hlophe and Goliath on 17 March 2020 is bound to lead to a protracted process. 

Hlophe has already faced an over decade-long battle with the JSC with regard to a complaint lodged by Constitutional Court judges accusing him of trying to improperly influence them during the trial involving former president Jacob Zuma and French arms company Thint. DM