Verbal abuse, victimisation, preferential treatment of his wife and even the physical assault of a subordinate are some of the allegations contained in a complaint lodged against Western Cape Judge President John Hlophe by his deputy, Patricia Goliath.
It is alleged in the complaint, which was sent to the Judicial Service Commission (JSC), that Hlophe and his wife, Judge Gayaat Salie-Hlophe, committed “gross misconduct” and that this compromised the proper functioning of the highest court in the province.
Salie-Hlophe is also a judge in the Western Cape.
But attorney Barnabas Xulu, who represents Hlophe and Salie-Hlophe, says the complaint contains gossip, rumours and information “obtained from the grapevine”, adding that it brings disrepute to the court.
In the 14-page affidavit sent to the JSC, Goliath claimed that, in her absence, the judge president (JP) referred to her as a “klein kak” (little shit) in front of their colleagues.
Appointed deputy judge president (DJP) in July 2016, she claimed that she occupied the position “only in name”.
She said she was “sharply aware” of the broader ramifications of her complaint, but was “left with no option but to pursue it in the light of the continuous, and sustained, assault upon my dignity”.
“The division is currently divided and more seriously, a climate of fear and intimidation prevails,” she said in the affidavit.
“I am currently operating in an unsafe, unhealthy and oppressive working environment and request urgent intervention to enable me to fulfil my constitutional role as deputy judge president. My present plight, especially as a woman, is untenable.”
In 2018, Goliath acted as a Constitutional Court justice. She returned to the Western Cape High Court in April 2019.
Upon her return, all her duties as the deputy judge president were suspended without any indication that she was no longer required to perform them.
“There was absolutely no open process with regard to the suspension of my duties and the other judges were not informed that I was no longer functioning as the DJP. This caused me considerable embarrassment, especially when judges or counsel sought an audience with me.”
When she asked, her registrar told her that Hlophe had instructed her to prepare the deputy judge president’s work and forward it to him until further notice, she said in the affidavit.
“In effect, Judge President Hlophe undermined my relationship with my registrar without any transparent process or discussion and in a manner patently directed to damage my authority.”
Weekly allocation meetings between the pair also no longer took place. Instead, Hlophe privately attended to these in his chambers.
Goliath said she was also no longer allowed to see members of the public, the profession or colleagues who had queries because they were referred to him by his registrar, even when he was out of the building.
“He managed the division remotely, or rather telephonically, when not in the building. This compounded my embarrassment especially when other judges or counsel needed assistance.”
When Hlophe launched the Eastern Circuit Court Local Division in Thembalethu in George last year, a “very junior judge”, Taswell Papier, was appointed to act on his behalf. This, she pointed out, was not in accordance with the Superior Courts Act.
Goliath said Hlophe later told her in a meeting that he had decided to move the court from George to Thembalethu because he was “sick and tired of white colleagues who go to George all the time”.
“He added that there is a lot of competition because they want to go and sit ‘comfortably for the National Party’. He indicated that now the seat of the court was in Thembalethu.
“He named a so-called white judge and others who will not be going any longer ‘which is fine’. I found these remarks both inappropriate and disconcerting since judges are allocated circuit court on a voluntary basis and those who seldom go are usually accommodated if they so wish. In other words, judges who regularly go on circuit will step aside if others volunteer their services.”
Goliath said Hlophe also accused her of not supporting him, conceding that they had disagreements on several occasions and that she “sought… to uphold and protect the Constitution in keeping with my oath”.
One such incident was the allocation of the Earthlife Africa matter in 2015, in which the government’s nuclear procurement processes was declared unlawful and set aside.
Goliath claimed Hlophe told her criticism against former president Jacob Zuma about the nuclear deal was “unwarranted”.
“He attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed to the former president. I immediately dismissed the idea and referred him to a Daily Maverick article in which negative aspersions were cast on his allocation in another matter. Although unhappy, he did not pursue the matter and we agreed upon the two judges subsequently appointed to hear the matter.”
Goliath said she met with Hlophe in October last year to “establish what he required me to do in order to support him in the division”.
The judge president essentially provided her with two reasons for withdrawing her duties – an instance in which he accused her of getting involved in his personal life and his realisation that he “does not need a deputy judge president as he felt he could run the high court on his own”.
“He also indicated that he was supposed to go on long leave but would rather forfeit the leave than go away for three months and come back to being without a job because of me. The decision not to vacate his office even for a short while gives rise to several negative perceptions. I elect not to speculate,” she said in the affidavit.
“Surprisingly, he also stated that I had been working to get him out of the division, that he was going nowhere and would not take his long leave as long as I am in the court building.
“He went on to say that he thought I was ready for the job, but I am not capable of running the division and I am not judge president material. He indicated that I would remain DJP but not do the work of a DJP. He would delegate work to me as he saw fit.”
After this, Goliath elected to move her chambers from the one situated opposite Hlophe’s to one on the other end of the building.
“I do not occupy the chambers designed to accommodate the deputy judge president simply because I am no longer functioning as the deputy judge president; a result of Judge President Hlophe’s current conduct.”
The judge president changed the rules when it suited him, undermining the effective management of the court, she charged.
He also abandoned some useful practices “in order to advance his narrow personal agenda”, such as Friday meetings to discuss the work for the week, policy matters and any other issues affecting the judiciary.
These gatherings, which were “at most times cordial, if not pleasant”, have since been abandoned.
“I think he avoids such meetings because contentious matters relating to his conduct in the division may well be raised by one or other of the judges. Such meetings it seems would be inconsistent with the dictatorial manner in which he elects to run the division.”
Goliath also alleged that Salie-Hlophe wielded enormous power, determined her own working days and hours, and had major clout in the appointment of acting judges.
She said it appeared “not to be a salutary practice” for a judge president and their partner to serve in the same division because questions of propriety would inevitably arise “in respect of sensitive allocations”.
Goliath said it was brought to her attention that Hlophe had physically assaulted one of his unnamed colleagues on the Bench and that the judge wanted to proceed with a criminal complaint. But another colleague persuaded him to not go ahead with it.
Nothing but gossip, rumour-mongering
Responding to the allegations, Xulu said it appeared that Goliath’s complaint had “nothing to do with judicial misconduct but a series of gossips, rumour-mongering and information allegedly obtained from the grapevine”.
“The DJP obviously disagrees with the management of the division which is solely reserved for the JP. It is well known that as a result of her disagreement with the management style of the division, there is tension between the DJP and the JP.
“Despite this tension though, it is a well-known fact that the Western Cape High Court Division remains one of the top-performing divisions in the country, well above the established norms and standards in the judiciary.”
Xulu said it was “unfortunate that the complaint, rather than raise legitimate issues that improve this performance, brings disrepute to the court”.
Hlophe, he said, would “demonstrate at the right time, before the correct forum, that the complaint revealed a deeply worrying standard of judicial competence from a member of the Bench in the position of the DJP”.
“For example, it would be unconstitutional for a JP to allocate cases to judges in the division based on the date of their appointment. Her view that judges are allocated cases based on their seniority belies the judicial attributes presumed to exist in judges.”
‘Vague and embarrassing’
“Allocating work to judges based on an unlawful classification of judicial officers is a serious threat to judicial independence and our client will not permit that practice.”
Hlophe intends to show there is no merit to the complaint which, he says, brings the administration of justice “into serious disrepute” based on irrelevant material and “vague and embarrassing” information, Xulu said.
“Our client’s rights to file a response to the appropriate forum remains reserved, save to deny that the DJP’s complaint has any merit.”
Salie-Hlophe referred queries to the Office of the Chief Justice.
Sello Chiloane of the Judicial Service Commission confirmed that the JSC secretariat received the complaint.
“[It] will be forwarded to the Judicial Conduct Committee for consideration and advice on how the matter would be proceeded with.”