There seems to be no end in sight to the judicial strife at the Western Cape high court. Instead, this week two things happened that have set a course for an extended period of unresolved tension between the court’s leaders — Judge President John Hlophe and Deputy Judge President Patricia Goliath — and many of their colleagues, who have been pulled in.
The first thing was that 10 judges of the Western Cape division wrote to Hlophe to say they would not sit with one of their colleagues because, in their view, he had acted with “apparent and serious lack of integrity”.
Their concern about Judge Mushtak Parker dates back to February last year, when there was an altercation between Hlophe and Parker in Parker’s chambers. That the two had an argument is the one fact that they all agree on. What happened during the argument — specifically whether Hlophe assaulted Parker — is another matter.
Straight after the altercation, Parker went to another of his colleagues, Derek Wille, and deposed to an affidavit — signed and sworn to — to support a criminal complaint, said the 10 judges in their letter. He also, according to the letter, in the months that followed told a number of his colleagues that Hlophe had assaulted him.
About a year later, Hlophe’s deputy laid a gross misconduct complaint against him with the Judicial Service Commission (JSC). The complaint contained a number of allegations against Hlophe, including that he had assaulted one of his colleagues.
Hlophe responded and counter-complained, saying her allegations were false and mostly based on gossip. He accused her of lying and being racist.
Hlophe denied the assault and said the two had resolved their argument, and had put it behind them. He said in his affidavit, signed and sworn to, that he had shown the relevant part of the affidavit to the judge concerned (he did not name Parker), who agreed with its contents.
There were now two materially different versions — both apparently from Parker’s mouth. “Common sense dictates that both of them cannot be the truth. It is here that my ethical dilemma arises when called upon to preside in a matter with Judge Mushtak Parker. The prevailing climate of untruthfulness makes it simply untenable to dispense justice in accordance with my oath of office,” said Judge Andre le Grange when he refused to sit in an appeal with Parker.
In the tense exchange of correspondence between the judges of the Western Cape division that followed, Parker explained the conflicting versions thus: “Having reflected on the narrative with regard to the alleged assault, very soon thereafter, and without anyone having influenced me in anyway whatsoever, I realised that events may not have unfolded in the way I had initially perceived. This is quite understandable, given my emotional state at the time.”
But the 10 judges said this only made their concerns greater. He could not “very soon thereafter” have made his realisation because months later he was still telling colleagues that Hlophe had assaulted him.
The second thing that happened this week was that the Judicial Conduct Committee (JCC) made its decision on whether the complaints between Goliath and Hlophe — if established — would amount prima facie to impeachable conduct.
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”. But, at the end of a section 17 investigation there is still a possibility of an impeachment tribunal.
Crucially, it is only when the JSC decides to appoint a tribunal that the judge concerned may be suspended. Until then, unless the judges themselves decides to ask for special leave, they must remain on the Bench. So far there seems no sign that any of the main protagonists have sought special leave.
And Chief Justice Mogoeng Mogoeng, speaking to the media on Tuesday, said he had no authority to intervene. Even if he called a meeting, the judges could ask him “on what authority?”.
So the JCC’s decision means that, for an indeterminate time in the future, all these judges at loggerheads will be working in one court on a daily basis.
This is not ideal for the good functioning of the division and, more importantly, it is damaging to the reputation of the court and the administration of justice.
In his written reasons for the JCC’s decision, committee member and Supreme Court of Appeal Justice Dumisani Zondi emphasised that Goliath had not substantially responded to Hlophe’s counter complaint 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.”
The second member of the majority, Deputy Judge President of the Johannesburg High Court Phineas Mojapelo said that prima facie gross misconduct could not be found “on the material before the committee”.
“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 [Goliath’s] deliberate decision not to engage with the response”, he said.
But “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 one 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.”
Expeditious finalisation. These are not words one associates with the resolution of judicial conduct complaints. Quite the opposite with a number of complaints that have dragged for years. The system put in place under the JSC Act is a laborious one.
When the fight lies between two judges of the same court, and when it has pulled in at least 10 of the division’s other judges, this is even more problematic.