The Western Cape high court can’t be a very nice place to work right now. On Monday the court began its first term of 2020 with its leaders — Judge President John Hlophe and his deputy Patricia Goliath — at loggerheads. Despite the seriousness of their dispute, neither of the judges involved have asked to be placed on special leave; and there are a number of legal hoops that must be jumped through before anyone can be suspended.
On January 15, Goliath made a gross misconduct complaint to the Judicial Service Commission (JSC) with a number of very serious allegations against her judge president and his wife Gayaat Salie-Hlophe, also a judge in the Western Cape high court. Her allegations included that Hlophe had tried to influence who was appointed to hear a politically sensitive court case, that he had assaulted a junior colleague in chambers and had sidelined his deputy, making her working life unbearable. Goliath said Salie-Hlophe had an inordinate amount of power at the court, influencing who got allocated to which case and who was appointed to act in the division.
In a statement, their lawyer denied all the allegations, saying they were little more than gossip. Salie-Hlophe went further, accusing Goliath of lying and of being a racist.
The tension between the three has been ongoing for some years, it emerged, and other judges have been pulled in. But the difference between now and then is that the bitter dispute has exploded into the public domain and every litigant and counsel may be looking at the judge presiding over their case and wondering.
They may be wondering whether, in their case against the government, the political inclinations of the presiding judge had a role to play in their being allocated. If Goliath is presiding, they may be wondering if she will treat their case differently because it is a “Cape Flats matter” — as alleged by Salie-Hlophe. If they have an acting judge, they may be wondering if she was appointed because she shared “school mom duties” with Salie-Hlophe, as alleged by Goliath. All of these are untested allegations, but as long as they remain untested and unresolved, people will wonder.
The fact that the judges are all in one court, working together, is not ideal in another way: judges who are potential witnesses must interact daily with each other and the accused judges, who are their leaders.
The Cape Bar Council last week called on the Chief Justice, Mogoeng Mogoeng, to get involved for the sake of “public confidence in the judiciary and the proper functioning of the division”. The council did not say so directly at first, but it is clear that it wants all three of the main protagonists off the bench until the complaint has been resolved.
But, as their correspondence this week makes clear, getting a judge off the bench — even temporarily — is not easy. This is for very good reason: it insulates judges from political and other pressure. No matter how serious a complaint is, how it is dealt with should not set a precedent that would erode protections that bolster judicial independence.
Under the Constitution, the JSC Act and regulations applying to judges, there are two ways to temporarily remove a judge — a suspension or when the judge is put on special leave.
The Constitution says a judge may be suspended by the president “on the advice” of the JSC when the judge is subject to an impeachment procedure. The Act then sets out what must happen in order for a judge to be subject to an impeachment procedure, and there are a number of steps.
The judicial conduct committee (JCC) must first get responses from the judge and complainant and may ask for further evidence. The judges may also ask to give oral evidence to the committee. The committee then compiles a report and makes a recommendation to the JSC on whether there is a case to answer for impeachable conduct.
The JSC then meets to decide whether it agrees. If it does, it can request the chief justice to establish a judicial conduct tribunal. It is at this point that a judge can be suspended.
All of this takes time. Theoretically, it needn’t be that much time but the JSC does not have the best record for speed. The previous complaint against Hlophe remains unresolved to this day, nearly 12 years later. The complaint against Pretoria high court Judge Nkola Motata also took years, although, to be fair, both these complaints were interrupted by much litigation.
Mogoeng said in his letter “barring litigation or inescapable delays, the JCC has always done everything within its power to attend to complaints with the necessary speed”.
In a statment, the JSC said it was “duty bound to deal with complaints as expeditiously as possible”.
The Mail & Guardian was unable to obtain comprehensive statistics on the JSC’s turnover rate this week. But, with no interrupting litigation, the racism complaint against former Pretoria judge Mabel Jansen still took almost a year to get to a tribunal. And, according to a JSC report obtained by lobby organisation Judges Matter, in the first quarter of 2019, of the 30 complaints received in the three-month period, 21 remained pending. Why they remained pending is not recorded in the report.
Special leave is different and much easier to achieve — except that it has to be asked for by the judge concerned. With the 2008 complaint, Hlophe asked for special leave and it was granted by former justice minister Brigitte Mabandla. But when he got fed up of it, he ambled back into his court and no one had the power to prevent it.
This time around, justice spokesperson Chrispin Phiri confirmed on Wednesday that neither Hlophe, Goliath nor Salie-Hlophe had asked for special leave.
Mogoeng said in his letter to the Cape Bar that even if the public is calling on him to act, “legality forbids that any of us acts to please the public … The Chief Justice does not have the power to have a judge go on leave of any kind or to suspend a judge.”
All true, said the Cape Bar. But there is nothing that “prohibits you, in your capacity as the leader of the judiciary of South Africa, from asking [the three] to take voluntary leave”. To this he responded: “It bears repetition that legality forbids that we purport to exercise power that has not been conferred on us … We will do what we consider to be in the best interests of the judiciary and the general public”.
An uncharitable reading of this response is that Mogoeng is hiding behind his lack of legal power — to do nothing.
Yet there is nothing to stop him from seeking to mediate. Talking to people and making suggestions is not exercising a legal power. Indeed with the 2008 complaint, Mogoeng — then judge president of the North West high court — tried to mediate. We know this because he later recused himself on those grounds when the complaint went to court.
A more positive reading is that Mogoeng is stepping in, but trying to do so privately — “We will do what we consider to be in the best interests of the judiciary” — and does not feel he has to answer to the Cape Bar.
What we know for certain is that he does not want to hear anything further from the Western Cape advocates: “And this marks the end of our engagement with you on this matter,” he said.