Goliath’s secret recording of Hlophe raises questions of ethics

NEWS ANALYSIS 

Western Cape Deputy Judge President Patricia Goliath says she has an audio recording of a  meeting she had with Judge President John Hlophe in which he had “an aggressive outburst”, calling her a “piece of shit”.

For one judge to record another during a meeting in chambers is an extraordinary move and goes against the tradition of collegiality long integral to the judiciary. But the judicial dispute rocking the Western Cape high court — currently being investigated by the Judicial Service Commission’s (JSC) judicial conduct committee — is unprecedented. Things previously unheard of have become the new normal.

Hlophe’s legal team will probably protest against the ethics of the recording, but it could be conclusive proof that Hlophe did insult Goliath and raises questions about his credibility as a witness in the investigation. 

In January, Goliath made a shocking gross misconduct complaint to the 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 Goliath’s working life unbearable. 

Hlophe responded to the complaint and 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 her complaint, Goliath referred to an incident when she had gone into Hlophe’s chambers and he “shouted at me in a very aggressive manner, chased me out of his chambers and called me a ‘rubbish’ and ‘a piece of shit’”. 

Now, in a replying affidavit — sent to the JSC last week — Goliath repeated that Hlophe had an aggressive outburst and was in a “fit of rage. His conduct was intimidating and offensive,” she said.

“I recorded our conversation because I no longer trusted the judge president … I wanted to make sure that I had an irrefutable record of the judge president’s reasons for the removal of my duties and responsibilities lest it be suggested that I willingly relinquished them.”

It is not illegal to secretly record a conversation if you are a party to the conversation, says the Regulation of Interception of Communications and Provision of Communication-Related Information Act. But the code of judicial conduct, which sets out ethical rules for judges, says: “Formal deliberations as well as private consultations and debates among judges are and must remain confidential.”

It could however be argued that the purpose of the code is to protect deliberation and debate among judges about court cases and not to protect a judge when he has insulted a colleague. The code also requires judges to, at all times, in chambers and in court, “act courteously and respect the dignity of others”. 

Speaking to the M&G, Xulu said that what happened in the deputy judge president’s chambers amounted to court proceedings and she made a number of court orders as a result. The conversation was recorded in order to have a record of what Goliath required, so that he could comply, as he later did. Court proceedings are always recorded, he said, and this could not be compared with what Goliath did to the judge president. 

Whether Goliath, by providing a transcript of the recording to the judicial conduct committee, has breached confidentiality may become a question as the investigation proceeds. Unlike court documents, affidavits to the JSC are not automatically public documents. The default position is one of confidentiality and — even when a matter gets to a tribunal (now in the realm of potentially impeachable conduct) — the JSC Act prohibits people from disclosing documents before a tribunal, with some exceptions or unless the chair says otherwise.

The rights and wrongs of taking the recording aside, it may have a big effect on the JCC’s investigation. If the recording is shown to be authentic, and shows, as claimed by Goliath, that the judge president was in a “fit of rage”, this will be manifestly clear. 

Responding to the allegation before the recording was revealed, Hlophe said he had been angry with Goliath, but her description was “inflated and untrue. I firmly advised Deputy Judge President Goliath to get out of my private matters and to focus on her professional responsibilities.”

The M&G has not heard the recording or seen the transcript of it. But if the recording is authentic and says what Goliath says it says, and if this dispute gets to a stage where there is cross-examination, Hlophe is likely to be grilled on whether the recording can be squared with his on-oath version of “firm advice”. 

He will also probably face questions on why he said her version was “untrue”. If he is unable to account for this, it could then affect his credibility in other he-said-she-said parts of the dispute, even though there is no recording. One can imagine the cross-examination: But you lied on the one incident, how can we trust you on the other? 

The new normal?

Ironically, the revelation about Goliath’s secret recording was preceded by the revelation of another secret recording in chambers, this time of Goliath by Hlophe’s attorney, Barnabas Xulu. It was related to a separate case that has also been controversial and about which Xulu has lodged a separate complaint to the JSC. It emerged during the litigation that, in a meeting in chambers between Xulu, his counsel Thabani Masuku SC and Goliath, a recording was made, in which Goliath referred to things she had heard “on the grapevine” and media articles. Xulu attached the transcript to court papers. The audio recording also found its way onto Twitter. 

On the taking of the recording, there is no specific provision in the ethical rules for attorneys and advocates but lawyers spoken to by the Mail & Guardian said this was an ethical breach. What happens in chambers between lawyers and a judge stays in chambers is the long-held rule, even when judges are more “robust” than they would be in court. 

There are good reasons for this — much of what happens in chambers is to help the litigation process along, making it faster and smoother. 

But, once again, it could be argued that, if the judge’s conduct in chambers is itself abhorrent and the judge denies it, then in those circumstances it would not be unethical to record it. If for example, a judge used the K word and then denied it, could it ever be argued that it would be wrong to produce a recording of it?

Whether what Goliath is recorded to have said was wrong is yet to be decided by the JSC. 

The two recorded conversations are very different: there is case law on how courts must deal with information extraneous to the court papers that come to their attention. 

If all were as it should be, there would be no secret recordings, because there would be no need. The fact that all this is happening is a reflection on just how toxic the Western Cape High Court has become. 

This article was updated on May 17 2020 to reflect comment obtained from Xulu.

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

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