To restore confidence in the judiciary, many judges will have to be judged 

The situation in the Western Cape Division of the High Court of South Africa is reaching a crisis. To summarise, the court’s Deputy Judge President, Patricia Goliath, has lodged a complaint at the Judicial Service Commission (JSC) against the division’s Judge President, John Hlophe. Goliath says Hlophe assaulted another judge, wanted to find a judge who’s “well-disposed” to then-president Jacob Zuma in the Russian nuclear deal case, and prevented her from playing a role in the management of the division. She also says that Hlophe’s wife, Judge Gayaat Salie-Hlophe, had taken over some of Deputy Judge functions, or at the very least was being favoured in the running of the court.

In reply, Hlophe’s attorney Barnabas Xulu says Hlophe vehemently denies the claims. Xulu stops short of saying that Goliath is lying, but says her claims are untrue. 

https://www.dailymaverick.co.za/article/2020-01-31-barnabas-xulu-zuma-hlophe-lawyer-ordered-to-repay-state-r20-million-in-legal-fees/

As a result of this, the General Council of the Bar representing advocates, the Council for the Advancement of the Constitution (Casac), Freedom Under Law and the National Association of Democratic Lawyers have all asked that Hlophe and Salie-Hlophe take special leave. 

Hlophe, of course, has a checkered history. He was accused in 2008 of trying to influence two judges sitting on the Constitutional Court in cases relating to Zuma. That accusation has still not been resolved after the JSC first refused to conduct a proceeding into it, and was then taken to court by the two judges Hlophe was accused of trying to influence.

However, the current situation could be far more damaging to the judiciary because of the questions other judges now have to answer.

Two ways of viewing the situation present themselves. The first is a technical, black and white approach; the second a more human point, accepting that there are shades of grey in human conduct. But no matter which is used, there are two unassailable points that demonstrate how the leadership of the judiciary has failed.

First, the technical approach.

There is a dispute of fact. Goliath says Hlophe committed certain actions, he says he did not. It is surely not enough for only one of them to be suspended or placed on special leave. If Goliath is lying, she too must be suspended (and if found by the JSC to have lied, must be removed from the Bench). 

This means that the division could lose both its judge president and its deputy judge president.

It may not end there for Goliath. She says Hlophe wanted to manipulate the caseload to favour Zuma in the Russian nuclear deal case, which was heard in 2017. Why has she only spoken up now? Such a reporting delay is unacceptable.

Then there is the person who was allegedly assaulted by Hlophe. If it is true that Hlophe did assault another judge, why did that judge not report a criminal act to the police? Is there not a duty on that judge to report the matter? Could that judge also be guilty of wrongdoing because of their silence?

It appears to be common knowledge among judges in the division as to whom the alleged victim was. Was there not a duty on them all to speak up? 

Then there is Hlophe himself. 

It seems unlikely that a deputy judge president would make up this litany of complaints against him without any grounding in fact. The detailed nature of some of the complaints suggests this is unlikely. 

If he did assault another judge, that is obviously grounds for impeachment. And the JSC would surely have little choice but to remove him from the Bench.

However, it is possible the matter contains more shades of grey.

It could be that Goliath found herself in a difficult position where she had some evidence of wrongdoing on the part of Hlophe, but not enough proof to make the case watertight. In the end, she went to the JSC with the information she had when she felt she had enough evidence.

Then, in the Russian nuclear deal case, it should be remembered the government lost that case, and that the deal was stopped by the Western Cape High Court. It would be hard to claim that Hlophe had the intention to help Zuma when he was unsuccessful in doing so.

As for the alleged victim of the assault, the judge may well have preferred not to press any charges for a multitude of reasons. Many other victims of assault have not pressed charges after their incident, sometimes because they do not expect to receive justice, sometimes out of fear, and sometimes because they wish to move on with their lives. 

However, there are two big issues that are unavoidable, and with which the leadership of our judiciary must deal.

The first is to sort out the timeline of events. Goliath’s affidavit is dated in January 2019. That gives the impression that the JSC sat on the complaint for a year before it was leaked. But it seems unlikely that that was the case (if only because the prospect of a complaint of this nature going through an email box and not leaking seems incredibly unlikely!). This means it is likely that it was a typo (especially considering that it was written in January). Either way, it would help restore the credibility of the JSC to at least confirm publicly the date of this if just to dispel suspicion and rumour.

Until there is a satisfactory explanation, there will be a justified suspicion and mistrust. 

Then there is the question of Hlophe and Salie-Hlophe working in the same division, with one allocating cases for the other. It is common practice in business not to allow a person to be in a position of management over their spouse. Here, Hlophe was deciding which cases his spouse would hear. It seems inevitable that at some point problems would arise. While there may be no rules in place on this, it seems apparent that rules should be drafted so this issue does not arise again.

Of course, the question now is what should happen next? It is key to restore public confidence.

As Casac said in a statement on Wednesday, what is necessary now is a timetable from the JSC in which it explains how it will adjudicate these matters. Were it to provide details of when claims and responses have to be filed, and then indicate when it will hold open hearings, much of the public heat will diminish. And should it then go ahead with a transparent process, its credibility could be restored.

The JSC has not given any indication that it will do this. The suspicion and mistrust will only continue. DM