A judicial storm erupted this week when a complaint lodged by Western Cape deputy judge president Patricia Goliath against her superior, judge president John Hlophe, came to light.
The complaint by Goliath on its own makes for concerning reading, as she accuses Hlophe of gross misconduct, and his wife judge Gayaat Salie-Hlophe of misconduct “which compromises the proper functioning of our court, the concomitant imperatives of integrity, and severely impinges on the court’s dignity”.
In the specific details of the complaint, she alleges that Hlophe sidelined her from the work she was supposed to do as deputy judge president and that Salie-Hlophe influenced the allocation of cases to judges.
She also alleges that he attempted to influence her to allocate judges “favourably disposed” to former president Jacob Zuma to hear the challenge brought by Earthlife Africa against the controversial nuclear deal with the Russians — which a court eventually set aside.
Both Hlophe and Salie-Hlophe have denied any wrongdoing.
While the sheer outburst of judicial politics is newsworthy in itself, given the severity of the allegations as well as how rarely internal tensions of the judiciary are revealed, the claims against Hlophe have far wider ramifications than merely against him personally.
It is not the first time Hlophe has been shrouded in controversy. The most prominent unresolved scandal that has hung like a poison cloud over the judiciary for more than a decade is the 2008 complaint the Constitutional Court laid against him, involving two of its judges, Bess Nkabinde, now retired, and Chris Jafta, who is now a permanent judge, but at that stage only acted in the apex court.
Jafta and Nkabinde alleged that Hlophe had approached them to try to persuade them to decide in favour of Zuma in a case related to the lawfulness of the search and seizure undertaken by the National Prosecuting Authority in the investigation of corruption allegations in the multibillion-rand arms deal.
Twelve years and many legal battles later, Hlophe has still not faced the Judicial Conduct Tribunal, which was set to deal with the allegations levelled by the apex court against him. After multiple postponements of the tribunal, it was set to start sitting late in 2019. It was once again postponed and it is not clear when it will sit.
The newest complaint against Hlophe now places more pressure on the Judicial Service Commission (JSC), whose main functions are to select fit and proper people for appointment as judges and to investigate complaints about judicial officers.
The JSC has been accused of not using its teeth, and now plays with its own credibility the longer the Hlophe saga plays out. If a complaint from 2008 is still not dealt with, it’s not unreasonable to assume it will take years before the newest allegations against Hlophe are investigated.
Both complaints should be dealt with expeditiously, as Hlophe himself, who has played no small role in the continuous postponement of the tribunal, has to answer to the allegations, even if it is only to give his side of the story in an official forum. If he is cleared after the process, the cloud is lifted.
If the complaints are substantiated, then Hlophe has no business leading one of the busiest high court divisions in SA.
The public deserves to have an outcome on what can only be described as a serious mess, as the reality is that it damages the image of the judiciary and the trust necessary for the proper functioning of the one arm of the state that withstood tremendous pressure during the state-capture years.
The judiciary’s independence should be unimpeachable, and when a judge brings that into question, the JSC cannot afford to dither in getting to the bottom of it.