Judge Hlophe ‘should take voluntary leave’ pending gross misconduct claim

The credibility of the Western Cape High Court is in jeopardy if Judge President John Hlophe remains at the helm pending the outcome of a gross misconduct complaint lodged against him. This is according to a senior judge at the division, who describes voluntary leave as the “honourable thing to do”.

Unease is said to have crept into the corridors of the province’s highest court as both Hlophe and the complainant, Deputy Judge President Patricia Goliath, remain in their positions. Signage indicates that the pair’s chambers are situated adjacent to each other. Goliath, however, had months ago relocated to the other end of the building.

The judge said there has been overwhelming backing for Goliath since she wrote a scathing complaint to the Judicial Service Commission (JSC), accusing Hlophe and his wife Judge Gayaat Salie-Hlophe of misconduct, which could see them removed from office if found guilty.

“She showed enormous courage and there have been strong feelings of support for her,” the judge said, speaking on condition of anonymity. “This has been long overdue, but nobody wanted to be the one to report it. It’s about time a light is shone on our division.”

On January 15, Goliath lodged the official complaint against Hlophe and Salie-Hlophe with the JSC, alleging “gross misconduct” which she charged compromises the proper functioning of the division. Hlophe, through his attorney Barnabas Xulu, denied there was any merit to the complaint, dismissing it as containing gossip, rumours and information “obtained from the grapevine”. He said Hlophe would demonstrate at the right time before the correct forum that the complaint had no merit.

According to constitutional law professor Pierre de Vos, the division now finds itself in a situation where either the head of the Western Cape High Court is guilty of misconduct, or his second-in-command is a liar. “That means that there is a serious credibility crisis,” De Vos told News24. According to him, it was “completely untenable” for them to remain in their positions until the complaint was resolved.

De Vos explained that once a complaint is lodged, the Chief Justice would decide whether it’s frivolous or should be referred to the Judicial Conduct Committee, made up of six judges and chaired by Chief Justice Mogoeng Mogoeng. They would then decide whether the complaint is serious enough to possibly lead to removal from office, which would result in the complaint being referred to a tribunal.

“It is correct that the Chief Justice can’t order them to go on leave, but he has the power to request it and to speed up the process so a decision can be taken about a tribunal or not. Once that decision is taken, the person against who the complaint is lodged can be suspended.”

Following the blistering complaint, the Cape Bar Council wrote to Mogoeng, requesting that both the Judge President and his deputy not perform their functions as the heads of the division, or that of judges, until there is an outcome to the complaint. It further asked that Salie-Hlophe also not perform and that all three be requested to take voluntary leave.

The National Association of Democratic Lawyers has also called for Hlophe to be placed on special leave to “enable the judges to continue their important work without any tension or pressure of any kind” until the complaint is dealt with and the process concluded. Freedom Under Law argued that “no judge should sit in judgement while himself facing serious allegations which go to his or her fitness to hold office, let alone lead a court”.

In her scathing 14-page affidavit, Goliath accused Hlophe of preferential treatment for his wife Salie-Hlophe, assaulting and verbally abusing two judges and attempting to influence the appointment of judges perceived as “favourably disposed” to former president Jacob Zuma to preside over the so-called Earthlife Africa case involving the nuclear deal.

According to Goliath’s complaint, Salie-Hlophe wielded enormous power, including determining her own working days and hours, as well as having major clout in the appointment of acting judges. Xulu described the complaint as “vague” and “embarrassing”, and “rather than raise legitimate issues that improve this performance, brings disrepute to the court”. Salie-Hlophe also hit back, accusing Goliath of attempting to oust the judge president in order to succeed him.

Describing herself as “collateral damage”, she further accused Goliath of racism, ulterior motives and having an “unhealthy obsession” with her marriage. Goliath, who declined to comment on Salie-Hlophe’s allegations, in her affidavit said a climate of fear and intimidation prevailed in the High Court, claiming that she was operating in an “unsafe, unhealthy and oppressive working environment”.

The Hlophes have since decided to sue Goliath for defamation, as well as lodge a counter-complaint with the JSC, Xulu said. CP Fourie, spokesperson of the JSC, said the JCC was dealing with the complaint and as soon as it is concluded their finding or recommendation would be communicated.

“The JCC will deal with the matter as expeditiously as practically possible and should be allowed the opportunity to do so.”

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