John Hlophe’s complaint against Mogoeng referred to JCC

The Judicial Conduct Committee (JCC) has recommended that a complaint by impeached judge John Hlophe against former chief justice Mogoeng Mogoeng be investigated and reported upon by a judicial conduct tribunal. 

Hlophe, who was judge president of the Western Cape High Court, lodged a complaint with the Judicial Service Commission (JSC) against Mogoeng, who was then chief justice, in August 2020.

The acting chair of the JSC referred the complaint to the committee and informed Mogoeng — who has since retired — of the complaint and asked him for his response.

The JCC considered Hlophe’s complaint in conjunction with Mogoeng’s filed response.

Hlophe alleged Mogoeng had a scheduled and private meeting with Western Cape deputy judge president Patricia Goliath in October 2019 about allegations of gross misconduct in his absence. In that meeting, Hlophe alleged Mogoeng had expressed partial views to Goliath in relation to those allegations and thereafter presided over the same allegations against him by Goliath in a manner that was inconsistent with his oath of office. 

Hlophe also stated in his complaint that he had lodged a counter-complaint against Goliath, which was presided over by Mogoeng. In July 2020, Mogoeng dismissed his counter-complaint and ordered that the complaint by Goliath against Hlophe be referred to the judicial conduct tribunal for further investigation. 

Hlophe said Mogoeng ought to have been aware that he was automatically disqualified from adjudicating the complaints filed by Goliath against him and his counter-complaint against Goliath. 

Hlophe also alleged Mogoeng was “economic with the truth” of what exactly transpired at the scheduled secret meeting on October 11 2019. 

Mogoeng denied all allegations against him.

Mogoeng said his meeting with Goliath was not secret but was held “in the normal course of exercising my judicial leadership responsibilities and immersed in integrity”. 

The JCC said in its ruling dated October 22: “The JCC must consider the seriousness of the misconduct and its gravity before it can take a view on whether, if the complaint is established, it will, prima facie, indicate incapacity, gross incompetence or gross misconduct.”

The committee comprises then-deputy chief justice Mandisa Maya and former judges of appeal Halima Saldulker and Jeremiah Shongwe. 

The committee said if the complaint were established, it would mean that Mogoeng acted dishonourably by having a secret scheduled conversation or discussion with Goliath about allegations of gross misconduct against Hlophe in his absence. 

“It is said that when two elephants are fighting, the grass suffers the most. (In this case it might mean the judiciary is brought into disrepute and will suffer irreparable reputational damage the most),” the committee said. 

It said the complaint would, if established, indicate gross misconduct on the part of Mogoeng that might be seen as bringing the judiciary into disrepute. 

“We therefore recommend to the JSC that the complaint be investigated and reported upon by a tribunal.” 

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