The majority decision of the committee, which receives and processes complaints against judges, said that instead of a tribunal to look into potentially impeachable conduct, it was recommending another kind of investigation, under section 17 of the Judicial Service Commission Act. Section 17 deals with “serious non-impeachable complaints”. However, at the end of a section 17 investigation there was still a possibility of an impeachment tribunal.
On January 15, Goliath made a gross misconduct complaint to the Judicial Service Commission (JSC), which included a number of allegations against her judge president. These 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.
Hlophe responded to the complaint and also made a countercomplaint against Goliath, denying most of her claims and dismissing others as little more than second-hand gossip. He said her seeking his removal on false claims was impeachable conduct.
In a majority decision of two to one, the Judicial Conduct Committee decided against a tribunal at this stage. The majority decision was made by Supreme Court of Appeal Justice Dumisani Zondi and Johannesburg Deputy Judge President Phineas Mojapelo. In his written reasons, Zondi emphasised that Goliath had not substantially responded to Hlophe’s countercomplaint and had not made submissions to the committee when it met to consider the complaints. He said these were a “jurisdictional requirement” for the exercise of the power to recommend a tribunal.
Zondi said: “I would have thought, as a matter of principle, that the committee must at the very least be in the possession of … a response to the complaint, a written representation and the oral representation … which, objectively speaking, could place the committee in a position to conclude that the complaint, if established, will prima facie indicate gross misconduct.”
Mojapelo agreed that it could not be found “on the material before the committee”, that the complaints amounted, prima facie, to gross misconduct. “At best what is before us justifies an investigation as contemplated in section 17,” he said.
Mojapelo said that some of the incidents referred to by Goliath “may have been solved by the parties on their own and to their satisfaction”. Others were vague, and others “may be fully explained away as a misconception of the law, especially in the light of [the] deliberate decision not to engage with the response”, he said.
However, “there are certainly issues which require to be investigated and once a finding has been made in one way or another the revelations may lead to a finalisation under section 17 or to Tribunal process”, said Mojapelo.
He said the standard for triggering the process to remove a judge should be very high because of the constitutional guarantee of judicial independence. “One can only imagine who and why some outside the judiciary may be only too ready to exploit a lower standard. The judiciary should be careful not to score a proverbial own goal,” he said.
The third member of the committee, Supreme Court of Appeal Justice Nambitha Dambuza was the only member who would have recommended a tribunal immediately. Dambuza said the job of the committee was “a preliminary assessment” to determine how serious the complaint would be — if the allegations in it were to be proven true.
Those complained of must be given an opportunity to respond, but even if they chose not to respond, this did not “alter the nature [of the] inquiry”, she said.
Dambuza said: “Both complaints allege extremely serious misconduct by the judges that, if established, would have a seriously negative impact, not only on the direct victim thereof but the wider judiciary … It is also true that proceedings under [section] 17 may culminate in the appointment of a tribunal. However, expeditious finalisation of these matters cannot be overemphasised.”