Straight out of the blocks, Western Cape Deputy Judge President Patricia Goliath denied leaking her original complaint to the Judicial Service Commission (JSC), lodged in January 2020, to the media, and said she had every right to report Hlophe’s behaviour to the JSC and had followed correct procedures in doing so.
In March, Deputy Chief Justice Raymond Zondo, who chairs the Judicial Conduct Committee (JCC), designated SCA Judge Nambitha Dambuza, who is also a member of the JCC, to conduct an inquiry into Goliath’s complaint. The filing of Goliath’s responding affidavit is part of the ongoing inquiry.
In her latest affidavit, Goliath also revealed that she had had a personal audience with Chief Justice Mogoeng Mogoeng in October 2019.
In that meeting, she said she had informed Mogoeng of Hlophe’s alleged assault on Judge Mushtak Parker as well as Hlophe’s enraged tirade against her on her return to the division after a stint at the Constitutional Court.
Goliath said she had communicated with Mogoeng “as required by the Judicial Code of Conduct”.
On Sunday, 10 May 2020, the Office of the Chief Justice issued a statement confirming the meeting and that Goliath had informed Mogoeng that her relationship with Hlophe had become difficult. Goliath had also told the Chief Justice that two judges had informed her about an alleged assault by Hlophe.
“Although she said nothing about her intention to lodge a complaint against the Judge President concerning their relationship, she however indicated that the Judge who was allegedly assaulted by the Judge President was thinking about doing so,” said Judiciary spokesperson Nathi Ncube.
Goliath, said Ncube, had also informed the Chief Justice that the alleged victim had been uncertain “about the appropriateness of reporting the alleged assault to the police and the Judicial Conduct Committee”.
“This was so, she said, because the alleged victim thought the Chief Justice would view reporting the matter to the police and Judicial Conduct Committee as conduct that would bring the Judiciary into disrepute.”
Ncube said that at the request by the alleged victim of the assault and another, Judge Goliath had sought to find out from the Chief Justice whether he would have had “any principled objection to the allegations being reported to the police and Judicial Conduct Committee”.
“The Chief Justice told her that any allegation of misconduct against any Judge must, in terms of the Code of Judicial Conduct and the Judicial Service Commission Act, be reported to the Judicial Conduct Committee.”
He also highlighted that any allegation of a commission of a crime “must, without hesitation, be reported to the South African Police Services”.
The Chief Justice, said Ncube, had also informed Deputy Judge President Goliath “that failure by any Judge to report these allegations to the structures with the legal authority to address them, “would be a betrayal of what Judgeship or the Judiciary is all about”.
“The Chief Justice stands by this position and would always encourage any alleged wrongdoing or alleged crime to be reported promptly.”
Ncube added that as the Chief Justice had previously announced, “he never had nor has he now the legal authority to personally deal with these issues outside of the processes under the JSC Act.”
So far, “none of those who have asked the Chief Justice to intervene in the Western Cape High Court could, when he pertinently asked them to, point to any provision in the Constitution, Judicial Service Commission Act, any other Act of Parliament, any Regulation or rule that empowers him to discipline a Judge or cause him or her to be suspended as many have suggested”.
Instead, they had suggested that Mogoeng either “pleads with Judge President Hlophe to go on leave or somehow use the ‘prestige’ of his office to ‘normalise’ the situation in the Western Cape”.
“Yes, the Chief Justice has been aware of the allegations against Judge President Hlophe since late 2019. But those allegations can only be resolved through the application of the law. It is necessary to emphasise that he does not have the power to resolve these challenges and cannot therefore exercise power he does not have.”
Hlophe, in his responding affidavit to Goliath’s original complaint, had accused his deputy of seeking to remove him from office and basing her complaint on “rumour” and “gossip”. He has subsequently lodged a counter-complaint against Goliath with the JSC.
“Nowhere in my complaint do I call for the removal of the Judge President from office, or submit that this is an appropriate sanction,” said Goliath in her affidavit which was filed with the JSC on 9 May 2020.
Goliath said all complaints to the JSC were subject to due process in accordance with provisions of the Judicial Service Commission Act “which provide for penalties other than the removal of a judge”.
In her January 2020 complaint, Goliath accused Hlophe of multiple violations including attempting to influence the appointment of judges in the crucial Earthlife Africa nuclear deal challenge as well as assaulting Parker.
Hlophe was also accused of sidelining Goliath, making unilateral decisions about case allocations as well as repeatedly reappointing the same acting judges in the division.
Goliath, in her January complaint, painted a picture of a divided division and accused Hlophe of fomenting a climate of fear and loathing.
In her latest affidavit to the JSC, Goliath sets out that it was on her return to the Western Cape division in April 2019, after a year at the Constitutional Court, that the animosity from Hlophe had first flared.
Prior to this, said Goliath, the Judge President and the Deputy Judge President had both been involved in case allocations, but this “came to an abrupt end” on her return.
The Judge President, said Goliath, had “exploded with rage” when she had visited him in chambers on her return shouting “you are rubbish and a piece of shit, get out of my office”.
What had prompted Hlophe’s wrath, said Goliath, was a personal matter between Hlophe and his wife, Judge Gayaat Salie-Hlophe, who had been involved in a “domestic incident” and which had drawn in Goliath.
Because of Hlophe’s attack on her in his responding affidavit to the JSC, Goliath said she had “no option” now, but to disclose the incident in her reply.
She said the Judge President Hlophe, in his reply, did not deny that he had referred to this incident as the reason he no longer wanted to work with her as his deputy.
“I note that the Judge President does not dispute that I had taken his wife to hospital, and that she sustained an injury to her hand at his home in Pinelands,” noted Goliath.
She said Hlophe also did not deny that there had been an altercation at Hlophe’s home “involving another woman”.
“He does not deny that his driver drove Judge Salie-Hlophe home in her official vehicle because she was distressed and unable to drive,” she added.
Salie-Hlophe, said Goliath, had called her on the same day and had asked her to check on her children after a power outage at her home, which is separate from Hlophe’s. On her arrival, Salie-Hlophe had asked Goliath to drive her to hospital.
“My involvement in their private life relates to one incident only, and I accordingly deny that I was meddlesome, intrusive or nosy in relation to his and his wife’s private lives,” Goliath said.
In October 2019, more than a year after the incident at Hlophe’s home, Hlophe had told Goliath that her involvement in his personal life prompted his decision to no longer work with her.
Goliath said that Hlophe had confronted her with unfounded allegations made by Salie-Hlophe which she had attributed to Goliath. Goliath said she had been accused by Hlophe of advising Salie-Hlophe to divorce her husband and expose him in the media.
“I was completely stunned by these allegations because all I did was provide support to his wife at her request,” said Goliath.
She added she would not have advised Salie-Hlophe to lay a false charge of assault against her husband.
“It is unthinkable that I, in my position as Deputy Judge President would encourage any judge to commit a crime.”
Prior to 2 October 2019, said Goliath, Hlophe had never confronted her with allegations that she had interfered with his marriage. She denied making statements with “racial connotations” to Judge Salie-Hlophe.
The alleged attempt by Hlophe to influence the appointment of judges in the Earthlife Africa nuclear deal challenge, said Goliath, was one “isolated occasion” where she had disagreed with Hlophe regarding the allocation of judges.
She said she had never interfered with Hlophe’s allocation of matters apart from the Earthlife Africa matter. Hlophe has accused Goliath of not supporting him.
“I agree that I did not support his initial suggestion relating to the allocation of the matter,” she said.
She set out how the Earthlife Africa matter had been allocated to her shortly after her appointment as Deputy Judge President in April 2016.
“The file was brought to the allocation room, ready to be assigned. However, on that particular day the Judge President was not in the allocation room,” said Goliath.
Because of the public interest in the matter, she said she had opted to hold over the decision to allocate the case until Hlophe was available.
“In the normal course I could have allocated the matter in his absence but I deliberately decided not to do so,” said Goliath.
The matter was subsequently allocated the following day “when the Judge President and I were together in the room”.
“The Judge President took the lead and firmly expressed the view that the former President was being unduly criticised, and proceeded to suggest judges whom he perceived to be favourable to President Zuma.”
Goliath said she had “expressed my disagreement with this suggestion” after a story which had been published in Daily Maverick.
“I referred him to the article. The Judge President is correct that reliance should not be placed on media reports. However, at the time I adopted the view that a cautious approach would protect judges from being viewed with suspicion.”
She said she had disagreed with Hlophe “and dealt decisively with the issue. The two of us subsequently agreed to two judges, and that was the end of the matter.”
Goliath said she had had no reason to lodge a complaint against Hlophe at the time “because the matter was dealt with to my satisfaction”.
She denied Hlophe’s assertion that Goliath had wanted to appoint “two white males” to hear the case.
“This would be completely contrary to the guidelines enumerated by the Judge President,” said Goliath.
She said that both she and Hlophe “perused the availability list and Judge Bozalek was the most senior judge who was available at the time”.
“We thereafter proceeded to find a judge in the bottom half of the seniority list. I deny that the allocation of the Earthlife matter was conducted in any manner suggested by the JP.”
In April 2017, Bozalek ruled that the secret R1-trillion nuclear procurement process concluded with Russia was unlawful and unconstitutional.
It later emerged that Zuma had personally guaranteed the deal to Russian President Vladimir Putin and that it had been signed in September 2014 without any parliamentary oversight.
The court also found that the inter-governmental agreements reached with Russia, the United States and Korea regarding the deals were also unlawful and unconstitutional, and should be set aside.
On 8 October 2019, a Tuesday and the day after she had moved into new chambers on her return, Goliath said she had gone to the office of Judge Derek Wille on the same floor to thank him for a chocolate he had left welcoming her back to the division.
There she had encountered Judge Mushtak Parker.
“Both of them appeared visibly troubled. I observed Judge Parker in particular was severely traumatised. Judge Wille informed me that Judge Parker had just been assaulted by the Judge President in his chambers and that he had prepared a statement to this effect,” said Goliath.
Parker had commented directly to her, said Goliath, that “he had never been treated in such an undignified manner in his life” telling the Deputy Judge President that Hlophe had “entered his chambers unannounced in a state of rage and shouted at him ‘do you want to f*&% my wife’ twice.”
The Judge President, Parker had told her, had “violently pushed against his upper body. In the process, he fell against a cupboard causing the cupboard key to break. As a result of the attack, he [Parker] fell to the ground and injured his back.”
The following day, the three judges again picked up on the alleged assault and Parker had explained that it had been prompted after he had greeted Judge Salie-Hlophe in the tea room by “gently tugging at the sides of her criminal robe belt”.
Parker had said he had not wanted to hug Salie-Hlophe as this would have been inappropriate. Salie-Hlophe had subsequently sent Parker “an angry email” to which he had responded.
“It was shortly thereafter that he was assaulted in his chambers by the JP,” said Goliath.
Parker, during his exchange with Goliath and Wille, had said he had considered laying a criminal charge, but that two colleagues had intervened and had suggested Parker should refrain from doing so. Judge Taswell Papier had been named as one of the judges.
Parker himself had suggested that Goliath report the matter to the Chief Justice “to which Judge Wille agreed”.
It was Parker who had suggested that she take up the matter with the Chief Justice which she later did in October 2019.
At this meeting, Goliath had told Mogoeng that she had recorded Hlophe’s tirade and that this had been attached to the affidavit.
Parker has since found himself embroiled in an application for the strike off of a firm he helped to establish for the alleged misappropriation of R8-million from its trust account.
The application was lodged by the Legal Practice Council with the Western Cape High Court in January 2020, but the copious papers in the matter “went missing” from the court buildings.
Parker has subsequently “recanted” the allegation that Hlophe had assaulted him and said he had “misunderstood” events that had taken place in his chambers. Hlophe has denied assaulting Parker.
Responding to her charges that Hlophe appointed the same candidates as acting judges for “long periods”, Goliath said she had highlighted the matter as this was in line with Hlophe’s own invitation for judges “to provide input and to raise concerns”.
Raising the issue, she added, did not imply that the candidates who had been selected by Hlophe were unsuitable.
“If competent male judges act over long periods of time, it impacts on the imperatives of transformation with regard to the appointment of Black female judges,” said Goliath.
Also considering “austerity measures: that had been implemented by the Office of the Chief Justice”, there were concerns about the cost and expense of appointing judges from outside the province.
She said that there had been no meeting between judges to discuss issues of concern in the division “for a long time”.
Goliath said she maintained that there were divisions “and a climate of fear and intimidation among judges”.
“It was brought to my attention personally that judges had been verbally abused by the Judge President after his wife levelled certain allegations against them.
“It is evident that the Judge President has no regard for the manner in which his actions impact on colleagues. He makes light of the manner in which he removed my duties in the most undignified manner. He makes light of the judges who were abused by him.”
Goliath said it was up to the JSC to decide on the merits of her complaint and that she had not, as Hlophe had suggested, brought the judiciary “into disrepute” because of the nature of her complaint.
“I am entitled to lodge a complaint with regard to any matter I feel aggrieved about. It is not for the Judge President to determine the merits of my complaint. He appears to hold the view that the mere lodging of a complaint with its subject matter amounts to gross misconduct.” DM
"The thorny question of violence is not just a matter of tactics. It is the defining question in the life and death of [social] movements." ~ Manuel Castells
Daily Maverick © All rights reserved