Judge Goliath takes on Judge Hlophe

The Judge President (JP) of the Western Cape High Court is again the subject of serious allegations. Judge Hlophe has been accused of a range of misconduct offences by Judge Goliath, who is the Deputy Judge President (DJP) of the same court.

In an explosive 14-page affidavit sent to the Judicial Service Commission (JSC), Judge Goliath claims that there have been on-going concerns on her part about Judge Hlophe. Her concerns as expressed, range across a wide number of issues,

The key allegations

Case allocation:

The allocation of cases to judges is generally done by the Judge President. This is guided by issues such as how long the matter will run, what the issues are at stake, and which judges are not already involved in other matters.

Judge Goliath alleges that Judge Hlophe made decisions on case allocations based on criteria he should not have used, such as giving his wife, also a judge, preference and allowing her to be the judge in the matter of S v Rhode, where more senior judges might have expected to sit in the matter..

Appointment of acting judges:

Judge Goliath also raised concerns about the appointment of acting judges. The Judge President in a division appoints acting judges as they are needed, generally from the ranks of magistrates, attorneys and advocates. No single agreed process for appointments is followed. Judge Goliath alleges that there are concerns about the appointments of acting judges in the division.

Assault:

She also alleges that there has been an incident in which Judge Hlophe assaulted a fellow judge.

Dilution of DJP duties:

The affidavit deals at length with the relationship between Judge Goliath and Judge Hlophe. She suggests that he has in effect suspended her as DJP, or ‘withdrawn my duties’ as she puts it. She also alleges that when Judge Hlophe was absent from the court, she was told that he had appointed a junior judge to perform the actions of an acting judge president. This, if true, would contravene the provisions of the Superior Courts Act, which says that the DJP must exercise the powers of the JP as the acting JP in that division.

These allegations are extremely serious and have been sent to the JSC.

What happens next – Complaints process

When the Judicial Service Commission receives a complaint regarding a judge that it considers serious it will form a Judicial Conduct Committee to assess the complaint. If the Judicial Conduct Committee finds that the complaint requires further investigation it will recommend to the JSC that a Judicial Conduct Tribunal is established in order to properly deal with the matter.

A tribunal comprises two judges and a non−judicial member taken from a list approved by the Chief Justice (and with the Justice Minister’s approval). The tribunal enquires into the allegations and submits a report of its findings to the JSC. The respondent is entitled to attend the tribunal‘s hearing and to have legal representation. The full JSC then assesses the Tribunal’s finding and if they think a case for impeachment is made out, it will be sent to Parliament for a vote.

The JSC can advise the President to suspend a judge who is the subject of a conduct process. In a previous case, Judge Motata, who was found guilty of misconduct, was not suspended but placed on special leave.

UPDATE: 8 December 2023

JSC releases Media Statement regarding JCC recommendations

In respect of the complaint against JP Hlophe, accepted the recommendation of the JCC to refer the complaint against JP Hlophe to a Tribunal for investigation and decided to request the Chief Justice to appoint a Tribunal to investigate the complaints of assault and use of abusive language.

The JSC has also decided to advise the President that it is desirable that JP Hlophe be suspended pending finalisation of the Tribunal process with the condition that JP Hlophe must finalise any outstanding matters during the period of suspension.

In respect of the complaint against DJP Goliath, the JSC have decided that the complaint against DJP Goliath does not constitute impeachable gross misconduct and it decided not to accept the recommendation of the JCC to refer the complaints against DJP Goliath for investigation by a Tribunal.

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