Hlophe complaint is an eerie echo

NEWS ANALYSIS

The gross misconduct complaint against Western Cape Judge John Hlophe this week hit like a cluster bomb — pieces of shrapnel flying in all directions. The judge president’s deputy, Patricia Goliath, made a bewildering number of allegations against the judge president, some so salacious and some so cryptic that the Western Cape legal gossip mill went into overdrive.

But juicy tidbits aside, the allegations, if true, are serious: an attempt to influence the outcome of an as-yet-unheard case, an assault of a junior colleague, an insinuation of domestic violence and a high court that is divided and unhappy.

Hlophe and his wife, Judge Gayaat Salie-Hlophe, are yet to respond fully to the allegations. They said this week that they are “gossip, rumour-mongering and information allegedly obtained from the grapevine” and without merit. If the past — and their attorney Barnabas Xulu’s hints — are anything to go by, more fireworks, and perhaps counterallegations, can be expected.

Hlophe and Zuma

Perhaps the most serious of the allegations made by Goliath is that the judge president wanted a case to be allocated to judges that he believed were sympathetic to former president Jacob Zuma.

The 2017 Earthlife Africa judgment set aside nuclear agreements that South Africa had concluded, including one with Russia. Goliath said that when allocating judges to preside, Hlophe had told her that, “the criticism against former president Zuma with regard to the nuclear deal was unwarranted”.

“He attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former president,” Goliath said. When she objected, Hlophe — “although unhappy” — relented and different judges were appointed, said Goliath.

The allegation is an eerie echo of an earlier complaint to the Judicial Service Commission (JSC), made more than 10 years ago. In May 2008, all the then justices of the Constitutional Court laid a complaint that Hlophe had visited two of the court’s justices and sought to influence how the highest court would deal with judgments, then pending before their court, relating to corruption charges against Zuma. Hlophe has consistently denied the charge.

At the time, it was widely believed that the Constitutional Court’s decision — depending how it went — would either clear a path for Zuma to be president or scupper his chances. Similarly, in 2015 when the Earthlife Africa case went to court, there was a view that, for Zuma, much depended on pushing through the Russian nuclear deal.

The earlier complaint has turned into a neverending saga and remains unresolved. A judicial conduct tribunal, which investigates potentially impeachable conduct, is still to get under way after years of intervening litigation and postponements.

In this latest complaint, it is still early stages. But the JSC will be hard-pressed to decide that this allegation does not warrant a tribunal, when the first one did.

However, there are some significant differences between the complaints. One is that Goliath’s allegation, made in 2020, refers to an exchange that must have happened in 2015 when the Earthlife Africa case first went to court. An immediate question is why Goliath took five years to report this to the JSC when the earlier complaint had been found to warrant an impeachment investigation.

For a judge president to prejudge a case; and to seek, using his power of allocation, to secure a certain outcome, and in favour of a politician, should be seen as misconduct of the most serious kind.

When the earlier complaint was first investigated, former chief justice Pius Langa and former deputy chief justice Dikgang Moseneke had said they did not feel they had a discretion to keep quiet, even though the alleged attempt to influence their court was unsuccessful — they had a duty to report it to the JSC, they said. Goliath’s approach was different, perhaps a depressing result of the way the earlier complaint was handled by the JSC.

Goliath could not be reached for comment this week but already Xulu has asked: “What triggered these past and old matters only now? Is there anything she is deflecting from?”

The assault on a colleague

In her complaint, Goliath refers to two incidents about which she did not “have personal knowledge”, but that in her view “involve sexual impropriety”. One of these resulted in an assault by Hlophe of his junior colleague, in judges’ chambers, she said.

It is a startling and unprecedented allegation. But — as pertinently pointed out by Xulu — it is second-hand and, at this point, much detail is missing.

From the written complaint, we do not know who the allegedly assaulted judge was, how serious the assault was, or what they fought about, only that it followed an incident that was “of a sexual nature”. It also appears that the judge concerned decided not to lay a criminal complaint with the police or go to the JSC.

However, if the incident is, as Goliath says, common knowledge among the division’s judges, the JSC should easily be able to get to the bottom of it all. From what Goliath says, at least three other judges would have direct knowledge of the incident: the judge who was allegedly assaulted and two others who later intervened. None of them may want to speak, but if called by the JSC it is unlikely that they would refuse or lie.

With little detail and no precedent, it is hard to predict how the JSC will treat these allegations and whether they amount to potentially impeachable conduct. The JSC Act also creates a category of serious, but not impeachable conduct, which has lesser consequences for the judge concerned, if found guilty.   

The toxic state of the Western Cape high court

The picture painted by Goliath of the state of the Western Cape high court is not pretty: “The division is currently divided and, more seriously, a climate of fear and intimidation prevails.”

Judge Hlophe’s wife, Salie-Hlophe, wields an undue amount of power and other judges are afraid of her, said Goliath. Salie-Hlophe is actively involved in the management of the court, how cases get allocated and the appointment of acting judges, said Goliath. “If Salie-Hlophe J does not approve of a potential acting judge, such person will not be given an acting appointment.”

For Goliath’s part, she has been sidelined, all her deputy judge president duties have been taken away from her and she is being victimised. “My present plight, especially as a woman, is untenable,” said Goliath.

Xulu said that despite tension between its two judicial leaders, the Western Cape division “remains one of the top-performing divisions in the country.”

Again it remains to be seen how the JSC will treat these allegations. There is no other division where the judge-president’s spouse is a judge of the same court. However, tension between colleagues is not new. In JSC interviews in 2017, it emerged that there were divisions and unhappiness at the Supreme Court of Appeal (SCA). The SCA is also a top-performing court but this did not detract from how seriously the issue was taken.

As the details emerged, Chief Justice Mogoeng Mogoeng questioned candidates about why this was the first he had heard of it all. Two independent sources have told the Mail & Guardian that Mogoeng was appraised of Goliath’s unhappiness and the tensions at the Western Cape high court before her complaint to the JSC. Spokesperson Nathi Mncube said it would be inappropriate for the chief justice to comment on the matter as it was before the JSC’s judicial conduct committee. 

The ‘altercation’ between Hlophe and Salie-Hlophe

This aspect of Goliath’s complaint is perhaps the most alarming because it can be read to  insinuate domestic abuse on the part of Hlophe. Goliath said she had no option but to disclose it because when she confronted Hlophe about being sidelined, at a meeting in October last year, he had himself referred to the incident, saying she interfered in his personal life.

It involved a “personal domestic incident at his house between him, his wife and a third party, another woman”, said Goliath. Salie-Hlophe had called her from Hlophe’s home and “disclosed certain information — which I elect not to set out herein”, said Goliath.

Goliath said Salie-Hlophe had asked her to go to her own house to check on her children as there had been an electricity cut. “She later arrived at her house … clearly distressed and in pain. She asked me to take her to hospital and explained in graphic detail what had transpired at Hlophe JP’s house. Her hand, it appears, was injured during an altercation. The injury was sufficiently serious to require stitches,” said Goliath.

It is not clear whether Goliath is alleging that the injury was the result of an assault. What Goliath does clearly say though is that, later, Salie-Hlophe had reported back to Hlophe a conversation between the two women that had infuriated Hlophe. The first time she saw him after the incident he “chased me out of his chambers and called me a ‘rubbish’ and ‘a piece of shit’”.

If Goliath did not mean to insinuate abuse, that may be the end of this aspect. But if Goliath is indeed alleging abuse, and if Salie-Hlophe disputes it, the JSC may find itself in a difficult position. It could seek to corroborate with the bodyguards who drove Salie-Hlophe home and the hospital. The process is likely to be closely scrutinised as it may be a crucial precedent for how allegations of gender-based violence within the judiciary are treated.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian
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