John Hlophe was impeached for trying to sway two apex court justices to decide applications linked to the arms deal in Jacob Zuma’s favour. Picture: Werner Beukes/SAPA
An appeal panel of the Judicial Conduct Committee (JCC) has recommended that an impeachment tribunal be instituted to investigate allegations of misconduct that Western Cape Judge President John Hlophe and his deputy Patricia Goliath made against each other in early 2020.
The decision followed an appeal lodged by Hlophe to a recommendation by then Chief Justice Mogoeng Mogoeng that a tribunal be established to investigate allegations of assault, abuse of power and use of abusive language Goliath levelled against him.
Goliath had filed a complaint of gross misconduct in January 2020, claiming Hlope had sidelined her, assaulted a colleague, allocated a case on a nuclear agreement to judges sympathetic to the Zuma administration and had called her “rubbish” and “a piece of shit” and chased her out of his chambers.
Hlophe denied most of her claims and dismissed the rest as gossip and rumour-mongering. As for their row in his chambers, he recalled being angry but not abusive. Goliath countered that she had a recording, opening another can of worms as to whether this was ethical.
Hlophe filed a counter-complaint of racism against Goliath, and said that by seeking his removal on false grounds she had made herself guilty of impeachable conduct. He further alleged that she was incompetent, had spread lies about him and sought to meddle in his marriage to a fellow judge in the division, Gayaat Salie-Hlophe.
In a majority decision in March 2020, the JCC recommended that an investigation be launched under section 17 of the Judicial Service Commission (JSC) Act, which deals with serious non-impeachable complaints.
The section 17 investigation done was by Mogoeng. In July 2020, he dismissed the counter-complaint against Goliath as unfounded, but said her complaint that Hlophe had stripped her of her powers as deputy judge president should serve before a tribunal.
In further fallout, a misconduct investigation was ordered against judge Mushtak Parker who had said under oath that Hlophe had assaulted him in chambers, then withdrew this version, saying it had been perception, not fact.
In response, Hlophe accused Mogoeng of irregularities so serious that his ruling should “be set aside as a nullity in its entirety”. These included bias, based on the fact that Goliath had initially approached Mogoeng directly, and he had encouraged her to report her concerns to the relevant legal authorities.
He also submitted that Mogoeng was disqualified from conducting the section 17 inquiry because his powers as chairman of the JSC had at the time been delegated to then deputy chief justice Raymond Zondo.
On Tuesday, in a decision penned by supreme court of appeal judge Nambitha Dambuza, the appeal panel of the JCC expressed the view that section 17 does not allow an appeal to a recommendation of further investigation as these are not final because the JSC could still decide not to heed them.
However, in terms of section 17(4)(a), a complainant can appeal against the dismissal of a complaint.
The committee rejected Hlophe’s complaint that Mogoeng lacked the power to lead the investigation, saying by law Zondo could delegate to another member of the JSC, as he did here. It also rejected the allegation of bias. Mogoeng had simply and correctly pointed out to Goliath that serious complaints must be referred to the relevant legal structures, as he did not have the power to intervene in a division, Dambuza said.
To disqualify the chief justice from doing what the law mandates him, “on account only of a report made to him or her prior to lodgement of a complaint would not only be unreasonable, it would impede the oversight and accountability objectives of the act”.
Nor did Goliath err in approaching Mogoeng, as she would be required to raise unbecoming conduct with the head of the court concerned or, in this instance, with the chief justice.
“The deputy judge president’s (DJP) report to the chief justice (CJ) was not only a reasonable step, it is encouraged under article 16 of the Judicial Code of Conduct,” Dambuza said.
“Logically, where a judge president is the judge about whom the report is made, the matter should be raised either with the JP concerned or with the chief justice as the head of the judiciary. This was not lost to the legislature when it decreed that the chief justice would (still) be the chairperson of the judicial conduct committee and in that capacity deal with complaints against judges.”
The committee agreed with Mogoeng that the allegation that Hlophe hurled abuse at Goliath be taken further, saying it could result in a finding that he was guilty of gross misconduct, “unless lip service is being paid to the fight against women abuse”.
It also upheld his recommendation that revoking her powers was a matter for a tribunal because Hlophe could not do so, as these were conferred by the law.
But it differed with Mogoeng on the dismissal of Hlophe’s counter-complaint on two scores. The first related to Goliath allegedly having referred to fellow judges in racist terms in conversation to Salie-Hlophe, and having urged her to stop using her husband’s surname.
Dambuza said she did not think this issue could be settled on paper, but should serve before the tribunal.
“If the allegations of racism against the DJP were established, including the allegation that the DJP referred to some judges as ‘kaffertjies’ or that the JP and Salie-Hlophe lied in imputing the allegations to the DJP, gross misconduct could be proved either way.
“The DJP remains aggrieved by the imputation of racism which she denies. For that reason, I would refer these allegations as part of the investigation by the tribunal.”
The committee also took a different view to Mogoeng on Hlophe’s complaint that Goliath had improperly disclosed information on a pending case when she raised their disagreement about the allocation of the Jason Rohde trial.
She had advised him that the case be heard by a senior judge with experience in criminal law. He allocated it to Salie-Hlophe. The committee pointed to the caution in note 16 of the JSC Act, that while judges had a duty to act when they believe a colleague had behaved in a manner unbecoming to judicial office, they should wait until the finalisation of the case in question to do so.
It may well be that in this particular trial, a delay would not have been desirable, she added.
“But the warning issued under note 16.1 cannot be ignored. This issue is complicated and not unimportant.”
As to whether Goliath had behaved improperly by recording her meeting with Hlophe in his chambers, as he alleges, the committee said this too should be aired in front of the tribunal.
Hlophe last month launched a legal review of a recommendation by the JSC to President Cyril Ramaphosa that he be suspended pending impeachment proceedings for attempting in 2008 to influence justices of the constitutional court in cases relating to the arms deal corruption charges against former president Jacob Zuma.
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