Three serious allegations contained in the explosive affidavit by Western Cape Deputy Judge President Patricia Goliath have resulted in Chief Justice Mogoeng Mogoeng recommending that a tribunal be established to investigate gross misconduct claims against Western Cape Judge President John Hlophe.
A counter-complaint made against Goliath by Hlophe was dismissed.
These are the claims against the Judge President that Mogoeng recommended be investigated.
Alleged assault on Judge Mushtak Parker
In her complaint, Goliath charged 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 was persuaded by another to not go ahead with it.
Judge Mushtak Parker has since been identified as the other party in the alleged scuffle. He has since agreed with Hlophe’s response, denying the attack.
Mogoeng said the alleged assault, inside Parker’s chambers during working hours, saw more than 10 judges depose affidavits, with 15 of Parker’s colleagues saying he had until February consistently “told the same assault story”.
According to an unsigned affidavit written for Parker by Judge Derek Wille, an angry Hlophe had gone to Parker’s chambers on 25 February 2019 and accused him of “wanting to ‘screw’ his wife”, Judge Gayaat Salie-Hlophe.
The Judge President had, according to the document, struck Parker with his fist to the chest and caused him to fall. He ostensibly hit a book cabinet with his back, breaking the key and causing injury.
Mogoeng said both Hlophe and Parker’s explanations of what happened in relation to the “simple matter of the alleged assault” lacked clarity.
“The JP does have a case to answer on the complaint of assault. I am satisfied that in the event of it being established that he assaulted Judge Parker as alleged… it is likely to lead to a finding that the JP is guilty of gross misconduct,” Mogoeng found.
“It is simply unthinkable that a Judge President, however angry he or she might be, would commit a crime of violence against another person, talk less of a fellow Judge within an institution that exists to rid society of criminality – a court of justice.”
Mogoeng said it could be even worse if “untruths were deliberately told by the judges involved”.
Use of abusive language
In the 14-page affidavit sent to the Judicial Service Commission (JSC) six months ago, Goliath claimed that Hlophe chased her out of his chambers in 2017 and called her a “rubbish” and “a piece of shit”.
Mogoeng said Hlophe initially sought to deny this, but left it unchallenged after reading a transcript and listening to the audio of a secretly recovered conversation with Goliath, in which he didn’t deny that he “abused her as alleged”.
He had in his latest affidavit said: “If I said this, it is quite understandable that I was angry. It was a single incident in which I was deeply offended by her meddlesome actions which caused unbelievable pain in my marriage and family.”
Mogoeng said it is not clear whether Hlophe admits or denies telling her “you are a rubbish and a piece of shit, get out of my office”.
“To have it established against someone who occupies the exalted office of Judge President that he said to a woman DJP that she is a ‘rubbish’ and a ‘piece of shit’, in an era when women abuse even at the workplace is reportedly on the rise, is likely to result in a finding that the JP is guilty of gross misconduct unless lip service is being paid to the fight against women abuse.
“We Judges must lead by example in this connection. I say this alive to the fact that the JP’s alleged anger might well serve as sufficient mitigation to bring the complaint down to a level of seriousness that is below ‘gross’.”
Abuse of power in relation to the office of the Deputy Judge President
Goliath had reported that 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.
While she had been available to deputise, Papier had discharged functions such as case allocation.
Goliath said Hlophe had also stopped assigning certain duties to her, his deputy.
Hlophe had countered that he didn’t need a deputy, that he didn’t trust her, that she wanted to remove him from his position, meddles in his private life and interferes with his case allocations.
He described Papier as a “dependable colleague who is able to perform those functions”.
Mogoeng found that the Superior Courts Act “not only clothes the DJP with certain responsibilities in the ‘absence’ of the JP, but is arguably not open to being discountenanced by the JP”.
“The position is a creature of the Constitution and statute and does not seem to exist at the pleasure of the JP.
“Taxpayers foot the bill to sustain the post for good reason.”
Mogoeng dismissed all other allegations by Goliath against Hlophe as meritless or brought to the wrong forum.
Hlophe had lodged a complaint of his own against Goliath, accusing her of gross misconduct for allegedly making false allegations against another judge, leaking it to the public and filing false charges against a judicial officer with the JSC.
Mogoeng dismissed the complaint, finding that none of the claims had merit.