Hlophe’s appeal against misconduct claims upheld

THE Judicial Conduct Appeals Committee has made a decision to uphold an appeal by Western Cape High Court Judge President (JP) John Hlophe.

It has ordered that the allegations of misconduct levelled against Hlophe, by Deputy Judge President (DJP) Patricia Goliath, and his counter-claim be investigated with the establishment of a tribunal.

This follows an appeal by Judge Hlophe against a decision by the former Chief Justice Mogoeng Mogoeng on his recommendation to the Judicial Conduct Appeals Committee, for the Judicial Service Commission (JSC) to establish a tribunal to investigate and report on allegations of assault, use of abusive language, and abuse of power allegedly by Judge Hlophe in the running of the Western Cape division.

The complaint by Judge Goliath was, in effect, that Judge Hlophe had assigned her duties to a different judge, had referred to “white judges” in a derogatory manner, victimised other judges, manipulated the allocation of cases, gave preferential treatment to his wife Judge Gayaat Salie-Hlophe and created an overall environment of fear and discontent which caused division.

A counter-claim of gross misconduct by Judge Hlophe against Judge Goliath was that she had a misconception of her powers as the deputy judge president, that she was guilty of incompetence, was trying to collapse the division by creating an administrative arm parallel to his, had undermined the judge president by secretly recording work-related conversations, lied about him and was meddling in his domestic affairs.

An inquiry was then held to investigate and report on the allegations, which then resulted in the consideration of an alleged assault by the judge president on another judge, the use of abusive language by the judge president, and the withdrawal of the deputy judge president’s powers and functions. Judge Hlophe’s counter-claim was dismissed by Chief Justice Mogoeng.

Following the inquiry, “the CJ was of the view that the circumstances ‘around this position (the deputy chief justice’s position) in the Western Cape Division’, including how previous DJPs had functioned, required thorough investigation and reporting on by a tribunal,” the committee said.

After going through the relevant Section 17 provisions, in relation to the powers of a judge, the committee’s Acting Justice Nambitha Dambuza said: “I am of the view that ordinarily the recommendation that the complaint against the JP be investigated by a tribunal, is not appealable. It is not final in effect. The JSC can still reject it. Moreover, no provision for an appeal against a recommendation is provided for in the JSC Act.”

However, the dismissal of the complaint was subject to an appeal and the dismissal of Judge Hlophe’s counter-claim by Chief Justice Mogoeng was then taken up for consideration by the appeals committee.

As part of the appeal, Judge Hlophe had argued that Chief Justice Mogoeng had come to his conclusion without authority to do so, that the chief justice had a biased view, and that the process of the inquiry itself was conducted without due process of holding a formal inquiry.

“I do not think that the issue can be resolved on paper … For that reason, I would refer to these allegations as part of the investigation by the tribunal. To this extent, I uphold the JP’s (Judge Hlophe’s) appeal against the dismissal of his counter-claim that was based on these allegations,” Acting Justice Dambuza concluded after thoroughly considering Hlophe’s arguments and the evidence of the complaints.

The committee therefore ordered that both the accusations against Judge Hlophe be subject to a tribunal investigation and “the allegations of racism, improper disclosure of information pertaining to a pending case, and the propriety of the secret recording made by Goliath DJP of the discussion between her and Hlophe JP at the meeting of October 2, 2019”.