Mogoeng’s omissions risk leaving the poison in the tree

The symbol of the Constitutional Court of SA, our highest house of justice, is of a tree and of people sheltering beneath its branches.

It has many evocations: of settling and dispensing justice under a tree, as was done in traditional African societies; of its canopy being sufficiently wide and fulsome to offer protection to all.

But there is another idea of justice contained in this image: of justice being an integrated system — strong sheltering branches being supported by other healthy limbs and, in turn, a robust, deeply rooted trunk.

The recent decision of chief justice Mogoeng Mogoeng, in his capacity as chair of the Judicial Conduct Committee (JCC), to put to the JCC that it recommend the establishment of a tribunal to investigate three very serious allegations against

Western Cape judge president John Hlophe would seem to be an indication of that integrated system at work.

In making his recommendation, Mogoeng comes to the conclusion that the allegations, if proved, are of such serious a character that they could establish gross misconduct leading to impeachment. For the many who have wished for a definitive resolution of longstanding allegations against Hlophe, so that the health of the judicial system might be assured, it’s hard not to want to applaud this decision.

The complaint made by all the then justices of the Constitutional Court that Hlophe sought to influence two of their number remains notoriously unresolved more than a decade later. In the interim, there have been several more serious allegations, but it was the complaint made by Hlophe’s deputy, Patricia Goliath, that made it plain that the branches representing the Western Cape judicial system, far from providing robust shelter, were whipping dangerously in the wind and likely to come crashing down.

Among the developments since Goliath’s complaint were that a large number of judges of the Western Cape disclosed that judge Mushtak Parker, who had allegedly been assaulted by Hlophe, while maintaining this to be accurate for well over a year, suddenly reversed course around February and denied such assault. These judges then refused to sit with Parker in hearing matters on the basis that his apparent and serious lack of integrity is irreconcilable with judicial function. Separate revelations relating to Parker’s former law firm and his conduct there further put into question his fitness but also intimate the potential for sinister leverage.

In arriving at his decision on the complaints made against Hlophe by Goliath, Mogoeng notes that it is difficult to identify, amid the various allegations, what exactly the complaints are, but goes on to characterise the three complaints against Hlophe that “I was able to make out” as: alleged assault, use of abusive language and abuse of power in relation to the office of the deputy judge president.

It seems clear that any of these complaints, if proved, would demonstrate a character unsuited to judicial office. As Mogoeng observes: ‘It is simply unthinkable that a judge president, however angry he or she might be, would commit a crime of violence against another person.”

Mogoeng goes on to remark that the wrongdoing would be aggravated if untruths were deliberately told by judges involved or if Hlophe “convinced Parker J through a considerable discussion and with the help of other judges” to change his version of the alleged assault.

But anyone who has read Goliath’s submissions will be struck by the omission, in Mogoeng’s decision, to address some of her other serious complaints. Two of the most striking are that Hlophe used his powers as judge president, such as case allocation, to secure rulings favourable to his preferred parties and that he has sought to secure acting judicial appointments for his friends and favourites.

The danger in this omission is that we come to see this judicial crisis as, at worst, a case of one bad apple when really it may be a case of an apple that poisoned a tree.