The Hlophe vs Goliath clash continues
Deputy Judge President Goliath (Goliath DJP) launched a complaint of gross judicial misconduct in terms of the Constitution, against Judge President Hlophe (Hlophe JP) at the end of January 2020. Judge President Hlophe has responded and laid a counter complaint against Judge Goliath. In a 100-page affidavit Judge President Hlophe deals with the allegations against him in turn.
Confidentiality of a complaint
Hlophe JP begins his affidavit with concerns about the process Goliath DJP adopted in lodging the complaint. He argues that Goliath DJP violated Article 17 of the UN Basic Principles (Bangalore Principles of Judicial Conduct, 2002), which states that the examination of a complaint of judicial misconduct “…at its initial stage shall be kept confidential unless otherwise requested by the judge.” He argues that there was a leak of the complaint to the media, and that Goliath DJP must have been responsible for it.
In his affidavit, Hlophe has a range of responses to the allegations made by Goliath DJP. These are informed by his view that there is a group of people who are part of campaign against him as a result of his background and race:
“What has aggravated the prejudice caused by the leaking of the complaint is that it has given further opportunities to those who have always sought to devalue my contribution to the judiciary on the basis of my background a platform to thrive in their campaigns. My experience of racial discrimination and attitudes in this Division is well recorded.” – Judge Hlophe JP
Allegations of assault
Hlophe JP denies any insinuation of an assault by him on his wife, and says that the public calls for his removal made by the leadership of the Cape Bar Council, retired judge Kriegler, the leader of the Democratic Alliance, and NADEL, have all been based on the false allegation that he is responsible for his wife’s injury.
In a second allegation of assault, Goliath DJP suggests that Hlophe JP assaulted a judge in the division, who has been named elsewhere as Judge Parker (link to profile). Judge Hlophe concedes that there was a personal dispute between himself and the judge concerned, but denies that there was an assault, and says that the matter was resolved.
Judge Salie-Hlophe involved in case allocation
Hlophe JP says that the allegation that Judge Salie-Hlophe is involved in the management of the court is another false and malicious allegation. The allegation is that Judge Salie-Hlophe gets involved in “case allocation”, and in appointing acting judges.
When cases generally come to the High Court, the judge that is allocated is not chosen randomly, say by drawing the short straw. In fact, the Judge President normally makes the allocation, based on a range of factors like workload, and expertise. Hlophe JP says that his key criteria are an avoidance of any conflict of interest, and whether there is a special public interest in the case. He particularly denies that the experience or seniority of a judge plays any role in his decisions. He does agree that he requests the appointment of black and women judges to bigger cases, to advance transformation, but denies that this amounts to manipulating the allocation of cases.
Who chooses acting judges?
The involvement of Judge Salie-Hlophe in the appointment of acting judges in the Division is another allegation that Judge Hlophe denies. The appointment of acting judges is very important, in that being able to act as a judge is a de facto prerequisite for appointment as a judge. The system is opaque in all divisions across the country, with even many judges not knowing how it works. Hlophe JP sets out a process whereby he consults different professional associations in order to widen the pool of available candidates. Hlophe JP denies that he has abused the acting appointment system to recommend the appointment of unworthy candidates, or friends of his wife, or that he involved his wife, Judge Salie-Hlophe, in the administration of the Division.
Judge Hlophe also denies the allegation that he has made racist statements about white judges in the Division.
Lastly, he also denies that he has taken away from Judge Goliath any of her duties as DJP, and denies appointing another judge to act in a role similar to the DJP when he was away. In addition, the JP argues that Deputy Judge President Goliath must be investigated for gross judicial misconduct.
The OCJ’s response
The Office of the Chief Justice has put out a statement, saying that the Deputy Chief Justice, who chairs the Conduct Committee “was satisfied in terms of section 16(1) of the Judicial Service Commission Act (Act 9 of 1994) (JSC Act) that each one of the two complaints, if established, would be likely to lead to a finding by the Judicial Service Commission that the respondent judge in each complaint is guilty of gross misconduct.
Accordingly, as required by section 16(1) of the JSC Act in such a case, the Deputy Chief Justice has referred the two complaints to the Judicial Conduct Committee to consider whether it should recommend to the Judicial Service Commission (JSC) that the two complaints be investigated and reported on by a Tribunal.”
The Judicial Conduct Committee met on Friday, 21 February 2020 and we await their advices.