Judge vs judge: Hlophe says Mogoeng should face impeachment

Chief Justice Mogoeng Mogoeng speaks to The Citizen at his office in Midrand, 7 October 2019. Picture: Tracy Lee Stark

In July, Mogoeng recommended Hlophe should face an impeachment inquiry over allegations of assault, abusive language and abuse of power levelled against him by Patricia Goliath.

Western Cape Judge President John Hlophe says Chief Justice Mogoeng Mogoeng should face an impeachment investigation for allegedly “scheming” with his deputy, Patricia Goliath, to engineer a false assault case against him.

In an extraordinary attempt to appeal Mogoeng’s dismissal of his complaints of racism, gross incompetence and dishonesty against Goliath, Hlophe claimed his deputy and the chief justice tried to persuade Judge Mushtak Parker to file a “false” assault complaint against him – “with the assurance” this complaint would be dealt with by Mogoeng.

This was according to an affidavit he filed at the Judicial Service Commission (JSC) as part of his appeal.

Hlophe’s accusations partially stem from a statement issued by the Office of the Chief Justice (OCJ) in May, which publicly confirmed Goliath had met with Mogoeng in October 2019 over Hlophe’s alleged assault of Parker.

“The chief justice told her [Goliath] that any allegation of misconduct against any judge must, in terms of the Code of Judicial Conduct and the Judicial Service Commission Act, be reported to the Judicial Conduct Committee,” the OCJ statement read.

“Additionally, any allegation of a commission of a crime must, without hesitation, be reported to the South African Police Service.”

In July, Mogoeng recommended Hlophe should face an impeachment inquiry over allegations of assault, abusive language and abuse of power levelled against him by Goliath.

Mogoeng was persuaded, in part, to make that decision after Goliath produced an October 2019 recording of Hlophe calling her “rubbish” and “a piece of s***”.

She produced the recording after Hlophe denied making these comments.

Mogoeng ruled if it was established that Hlophe had used such abusive language to refer to a woman deputy judge president, this was likely to result in a finding that Hlophe was guilty of gross misconduct – “unless lip service is being paid to the fight against woman abuse”.

He dismissed Hlophe’s complaints against Goliath as having “no basis”.

Hlophe argued that, because Mogoeng had met with Goliath over the disputed Parker assault, he was effectively a witness in the matter and should not have adjudicated over it.

He said: “Having carefully examined the ruling of Mogoeng CJ, I respectfully say that the cumulative effect of the basis upon which I appeal, read together with the irregularities in the decision-making process adopted by the chief justice, are so egregious that the ruling should be set aside as a nullity in its entirety. Mogoeng CJ was not only unauthorised to adjudicate over the complaints, he was automatically disqualified to do so on the basis of actual bias.”

The OCJ declined to comment on Hlophe’s latest accusations against Mogoeng, as has Goliath’s attorney, Nick Muller.

The JSC is set to consider Hlophe’s appeal against Mogoeng’s findings on his gross misconduct complaint against Goliath on 14 December.

Parker is himself facing an impeachment inquiry after he backtracked on his sworn claims and alleged verbal statements to multiple judges that Hlophe had assaulted him in his chambers, in the apparent belief that he had made unwanted advances on his wife, Judge Gayaat Salie-Hlophe.

But, according to Hlophe, both Goliath and Mogoeng “knew” the alleged assault never took place but nonetheless tried to persuade Parker to make a false statement against him.

“This appears to me to be a serious unlawful manipulation of the judicial misconduct rules, a subversion so grave as to bring the judiciary into disrepute,” Hlophe stated.

“It deserves a full investigation by the JSC for the public would rightly be outraged that a chief justice and a deputy judge president connived to encourage the filing of charges that they knew were false.

According to Hlophe, Parker – “without any pressure or intervention from anyone” – told Goliath and other judges “that I had not assaulted him”.

Parker has yet to back Hlophe’s evidence with a sworn affidavit, but the judge president maintains he will do so.

It is, however, already clear, based on the evidence provided to the JSC’s Judicial Conduct Committee, that Parker must have lied: either about the fact that he was assaulted by Hlophe, or in his subsequent claims that he “misremembered” that alleged assault.

If Parker fabricated his story about being assaulted by Hlophe, and then repeated that lie to at least six other judges, then the judge president’s efforts to defend him seem bizarre.

Hlophe has publicly reprimanded the 10 judges who refused to share a bench with Parker and accused them of “taking the law into their own hands”.

If Parker is lying to protect Hlophe, who insists the assault never happened, then the judge president has lied under oath to the JSC and has actively participated in a cover-up.

Parker is also facing a separate impeachment inquiry over an alleged R8 million shortfall in the trust account of a legal firm he helped establish which he failed to disclose when he first applied to be a judge.

The misappropriation of trust monies, which constitutes a serious breach of attorneys’ ethical rules, allegedly occurred while Parker worked at the firm.

But Hlophe insisted Mogoeng’s handling of the various misconduct complaints against himself, his wife and Parker “may well have been influenced by his deep-seated belief in his faith as a Christian”.

Hlophe, Salie-Hlophe and Parker are all Muslims.

In reference to Moegoeng’s defence of his comments to The Jerusalem Post that South Africa would have greater influence if it displayed a more balanced approach in the Israel-Palestinian conflict, Hlophe said this response showed the chief justice’s “world view is shaped by his interpretation of the Bible”.

“The chief justice is in fact so absolved in his own interpretation of the Bible that he is unable to rise above it.”

News24

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