The explosive complaint, lodged by Western Cape Deputy Judge President Patricia Goliath with the Judicial Services Commission (JSC) on 15 January 2019, has set out alleged widespread misconduct by Western Cape Judge President, John Hlophe, and his wife, Judge Gayaat Salie-Hlophe.
The most serious allegation by Goliath is that Hlophe had, in 2015, attempted to influence the appointment of judges in a legal challenge by NGOs Earthlife Africa Johannesburg and the Southern African Faith Communities Environment Institute to former President Jacob Zuma’s secret R1-trillion nuclear deal with Russia.
Goliath claims that Hlophe had informed her back then that “criticism of former President Jacob Zuma with regard to the controversial nuclear deal was unwarranted”.
The Deputy Judge President added that Hlophe had attempted to influence her to allocate the matter to two judges that “he perceived to be favourably disposed towards 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 did not set out in her complaint to the JSC why she did not opt to report Hlophe’s conduct at the time.
In 2017 the NGOs secured a victory when Cape High Court Judge Lee Bozalek ruled that the procurement process as well as nuclear co-operation agreements with Russia, the US and Korea were illegal.
Goliath, who recently served as an acting justice in the Constitutional Court, in her complaint also accused Hlophe of assaulting a fellow judge in chambers.
“The judge concerned (whose name is known to Daily Maverick) drew up an affidavit for the purpose of filing a criminal complaint. However, it appears that Papier J [Taswell] and another judge intervened and persuaded the judge not to proceed with the criminal complaint,” said Goliath.
She said the incident had involved sexual impropriety and “the two judges now, regrettably, have unresolved serious allegations against their name”.
The attempt by the two judges to deter a fellow judge from lodging a case of common assault against the Judge President could be viewed as an obstruction of justice.
“Most judges are appalled by the above incidents, especially with Hlophe resorting to physical violence. It renders our working environment hostile and unsafe,” said Goliath.
All of this is going on behind the facade of 35 Keerom Street where about 30 judges of the Western Cape High Court Division and their support staff have chambers.
Hlophe’s legal representative, Barnabas Xulu, has dismissed Goliath’s complaint, stating it was based on “gossip, rumour, irrelevant material and information obtained from the grapevine”.
In her complaint, Goliath said that her “plight, as a woman, has become untenable.”
“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 DJP.”
The division was divided and “more seriously, a climate of fear and intimidation prevails”.
She further accused Hlophe and his wife of sidelining her with regard to the referral of matters to her office and that, at present, she occupied the position of Deputy Chief Justice “albeit in name only”.
In her complaint against Hlophe and Salie-Hlophe, Goliath said their conduct had compromised the proper functioning of the court, “concomitant imperatives of integrity” as well as “significantly and severely impinging on the court’s dignity”.
Goliath was appointed as Western Cape Deputy Judge President in 2016. In 2018 she acted as a judge in the Constitutional Court before going on long leave and returning to the Western Cape Division in April 2019.
On her return, she said she had found herself sidelined and excluded with all her duties unilaterally suspended by Hlophe. Registrars appeared also to have been “coached to conduct the business of the court in such a manner as to exclude the DJP”.
“I established that they were expressly instructed not to refer anyone or any matter to me and that this was the manner in which the division was run when Desai J acted in my position in 2018.”
Hlophe’s animosity and antipathy towards her became clear during a meeting with the Judge President in October 2019 when he offered two reasons for his withdrawal of her duties on her return from her stint at the Constitutional Court.
“The first involves a personal domestic incident at his house between him, his wife and a third, party, another woman.
“He [Hlophe] stated that I had interfered in his personal life and that he considered that fatal to our relationship. This is a private matter but due to the attack upon me I have no option but to refer to it,” said Goliath.
The incident, said Goliath, had taken place during a recess in 2017 at Judge Hlophe’s residence in Pinelands after Judge Salie-Hlophe had telephoned her [Goliath]. Judge Salie-Hlope, said Goliath, did not reside in the same house as her husband at the time.
Goliath said Salie-Hlophe had called her and had asked her to go to her house. Salie-Hlophe had arrived later, driven by Judge John Hlophe’s bodyguard.
Salie-Hlophe “was clearly distressed and in pain. She asked me to take her to the hospital and explained to me in graphic detail what had transpired at Hlophe JP’s house. Her hand, it appears, was injured during an altercation.”
After the incident, said Goliath, Judge Hlophe had shouted at her “in a very aggressive manner, chased me out of his chambers and called me rubbish and a piece of shit.”
This was the incident Judge Hlophe referred to again in the October 2019 meeting with Goliath. She said the second reason he had given for withdrawing her duties was that he no longer required a DJP.
While Salie-Hlophe may have called on Goliath’s help in 2017, regardless of this, the role of the Judge President’s wife in the division was, said Goliath, now “disconcerting to say the least. She wields enormous power and, I say this reluctantly, some judges are afraid of her”.
Apart from being actively involved in the management of the court, Salie-Hlophe also took it upon herself to allocate matters and, “most disturbingly, the appointment of judges”.
“Salie-Hlophe chooses who she does NOT want to sit with on the bench and Hlophe JP usually goes along with her decision,” said Goliath.
The Western Cape Judge President is facing the prospect of a JSC misconduct inquiry over allegations that he sought to influence two Constitutional Court justices to rule in favour of Zuma during the then ANC president’s 2008 challenge to the warrants used to secure thousands of documents that were later used in his corruption trial.
Hlophe’s misconduct hearing has dragged on for more than a decade with endless delays and legal challenges, and has still not been resolved.
In the meantime, in 2014, Hlophe found himself at the receiving end of a stinging Supreme Court of Appeal judgment in the MT Mulaudzi and Old Mutual Ltd and two Others matter.
In that case, Hlophe had allocated himself as a judge and promptly lifted a restraint order issued by another judge, A J Weinkove. Hlophe also dismissed an application by the NDPP and Old Mutual to intervene in the matter.
Hlophe’s own lawyer, Barnabas Xulu, represented Mulaudzi in that case.
Later, Supreme Court of Appeal Judge Visvanathan Ponnan found that the fact that Xulu represented Hlophe in various matters, including his misconduct hearing, gave rise “to the reasonable apprehension that in the light of the particular nature of that relationship, the Judge President would not bring an impartial mind to bear on the adjudication of a matter brought before him by his attorney”.
Responding to Goliath’s complaint, Xulu said that Hlophe 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 deputy judge president”.
Daily Maverick has approached the office of Chief Justice Mogoeng Mogoeng on this unprecedented moment in the country’s post-apartheid judiciary, but had not received a reply at the time of writing. DM