JUDICIARY IN CRISIS

Hlophe vs Virtually Everyone: Secret meetings and illicit recordings highlighted in judge president’s ‘misconduct’ saga

By Marianne Thamm 14 January 2021
Caption
Western Cape Judge President, John Hlophe during the Judicial Service Commission tribunal which is investigating a complaint of judicial misconduct against him on October 3, 2013 in Johannesburg, South Africa. (Photo: Gallo Images / Foto24 / Nelius Rademan)

After a torrid year for the judiciary, the dirty political battles in the corridors of the highest courts are set to continue to play out in public view.

While two secret recordings feature in the ongoing turbulence between Western Cape Judge President John Hlophe and his deputy, Patricia Goliath, only one has made it to Hlophe’s appeal against a finding that he subject himself to a Judicial Conduct Tribunal.

While another judicial tribunal still deliberates on submissions made in the December 2020 hearing relating to Hlophe’s alleged attempt to influence two Constitutional Court Judges in 2008, he has yet to learn his fate with regard to an allegation that he assaulted fellow judge Mushtak Parker in 2019. 

The complaint was lodged with the Judicial Service Commission (JSC) by Deputy Judge President Goliath in January 2020. The JSC has since recommended that Parker be suspended pending the findings of a tribunal that he had presented conflicting versions of the alleged assault by Hlophe.

In July 2020, Chief Justice Mogoeng Mogoeng personally intervened to recommend that Hlophe face a misconduct tribunal with regard to his alleged assault of Parker. 

It is this intervention as well as other issues surrounding the origin of the complaint that Hlophe highlighted in his August 2020 appeal to the Judicial Conduct Committee (JCC).

On 12 January 2021, Hlophe’s legal representatives, Barnabas Xulu and senior counsel Thabani Masuku, submitted to the committee further written submissions in support of Hlophe’s August 2020 appeal.

There is cause for pause and reflection at this point of the relationship between Xulu, Masuku and Goliath outside the orbit of the alleged Parker assault claims.

In March 2020, Xulu lodged a complaint with the JSC about Goliath’s alleged conduct in a High Court matter she was to hear involving the payment of R20-million in legal fees by the state to Xulu’s firm Barnabas Xulu Inc (BXI).

In that instance, Goliath had recused herself after Xulu had complained to Hlophe that his deputy had asked for more information and was hesitant to issue the order in Xulu’s favour. That order, it was later revealed, had been signed “in chambers” by Hlophe.

On 1 April 2019, Xulu and Masuku visited Goliath in chambers in Cape Town to persuade her to execute a “settlement” agreed to verbally between the Department of Agriculture, Forestry and Fisheries and BXI.

(The “settlement” was subsequently declared invalid and was set aside by Judge Owen Rogers in January 2020).

There were only three people in the room – Xulu, Masuku and Goliath – and Goliath denied making the recording that surfaced on YouTube in February 2020.

Masuku and Xulu, in their January 2021 submission, assert that the fact Goliath had secretly recorded Hlophe on 2 October 2019, when he had insulted her, a recording she later played to Mogoeng, was enough to prove gross misconduct on her part.

“The fact that the Chief Justice is not outraged that I was covertly recorded by the DJP (Goliath) is a telling indication of bias,” Hlophe said, adding it was illegal evidence and “if it were a criminal case, such evidence would not be admissible”.

Masuku and Xulu assert that in a media statement Mogoeng “surprisingly, makes no mention of the fact that Goliath informed him that she had recorded her meeting [with Hlophe]” and had created the impression “that nothing of substance was discussed”.

Hlophe and his legal team have argued the meetings between Goliath and Mogoeng were “secret” while the chief justice and the DJP have both argued that Goliath was obliged, by law, to report on alleged misconduct by a fellow judge.

Hlophe also says that at this meeting Mogoeng was made privy to information regarding “my case” and that his conduct in handling the section 17 (2) inquiry, by personally intervening, was unlawful.

Hlophe wants the complaints to be referred back to the JCC and that Mogoeng and Goliath be excluded from “persons that may conduct the inquiry” since they were “conflicted”.

Indeed, it was Goliath who was guilty of gross misconduct, suggested Hlophe, who also “recommended” to the JSC that his complaint against his deputy be investigated by a Judicial Conduct Tribunal.

The year 2020 was torrid for the judiciary in terms of interpersonal relationships between judges, including the chief justice. It ended with Hlophe finally facing a tribunal 12 years after he was accused of attempting to influence Constitutional Court judges in 2008.

Mogoeng, whose term ends in 2021, will be pitted against a judge president who has managed to disrupt the judiciary and bring to the public a bleak behind-the-scenes view of the fraught and dirty political battles that have played out in the corridors of the highest courts. 

That judges, advocates and lawyers have restored to illegally recording colleagues points to a deep malaise and distrust that spills over into the public realm. DM

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  • When can you record a conversation without consent?
    The Act sets out certain exceptions to the abovementioned rule. In terms of Section 4 of the Act, you may record a conversation without consent if:

    you are a party to the conversation;

    clearly the DJP was a party to the recorded conversation…

  • It is far more likely to have been the Xulu /Masuka camp who posted the recording on YouTube to muddy the waters in a case they had anyway lost and to add weight to Hlope’s claims of victimization. Goliath had no need to release a recording anonymously even had she made one, a surreptitious recording may not be valid in prosecution but it certainly can be used in defence against false accusation.

  • Bottomline….if you’re accused of something serious, but is innocent, beg that the Judge Hlophe is not presiding, and Barnabas Xulu is not defending you. The chances are you will be found guilty on all accounts.

  • Mogoeng will be retired by the end of the year. As for Hlope, Goliath and Parker, they should all be sacked. They are all conflicted in this matter. How can they be viewed by the public with the gravity and respect due to such an important office in the judiciary.

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