Adriaan Basson

Adriaan Basson: Mogoeng must lead in the Hlophe morass

2020-02-05 08:29
Judge John Hlophe.

Judge John Hlophe. (Pauli Van Wyk, Beeld, file)

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Despite confirmation that it will investigate the matter (as it should), the JSC provides no comfort to the judges, prosecutors, attorneys, advocates, witnesses, victims and accused persons who must appear before the Hlophes, writes Adriaan Basson

“Justice must not just be done, but be seen to be done.”

With this plea, that underscores the importance of perception about a judiciary that is fair, independent and uncaptured, the General Council of the Bar has become the latest grouping of lawyers to ask for the removal of Western Cape Judge President John Hlophe and his wife, Judge Gayaat Salie-Hlophe.

The Hlophes are the subject of a bombshell complaint to the Judicial Service Commission (JSC) by Deputy Judge President Patricia Goliath, who claims they have been running the Western Cape division of the high court as their personal fiefdom.

The Hlophes have threatened to lay a counter-complaint against Goliath and sue her for defamation.

The appointment of acting judges, including former student mates, acquaintances and colleagues of Hlophe’s personal attorney, is just one of several complaints levelled against the controversial judge president by his deputy.

The JSC has confirmed receiving and investigating Goliath’s complaint, but recent experience has shown that this process may take years to conclude.

It is an untenable situation and the Western Cape High Court is operating in crisis mode. Even the judges of this court issued an unprecedented media statement on Monday, saying the integrity of their court will be impaired for as long as Goliath’s complaint remains unresolved.

One can just imagine what a tense place the judges' tea room down in Keerom Street must have been for the past two weeks.

The judges’ statement came after calls by the Cape Bar Council, the Legal Practice Council and the National Association of Democratic Lawyers (Nadel) for the matter to be resolved speedily. That is unlikely to happen. Therefore, the Cape Bar and Nadel have argued that the Hlophes should take special leave while the matter is resolved.

In a significant exchange of letters, the Cape Bar Council’s chairperson and vice-chair, Andrew Breitenbach SC and Karrisha Pillay SC, have written to Chief Justice Mogoeng Mogoeng, pleading with him to intervene in the court’s "status quo" in light of the complaint.

The tone and approach of Mogoeng’s response is significant and disappointing.

His letters are stripped of emotion or empathy about the situation the Western Cape division finds itself in and makes mention to what Goliath "apparently considers to be unethical behaviour or misconduct".

Mogoeng then proceeds to scold the Cape Bar for daring to ask him to intervene, stating he has no powers over the JSC to act against the Hlophes, suspend them or ask them to step aside pending the investigation by the JSC’s Judicial Conduct Committee. He further points out that he doesn’t have the powers to “please the public”.

This trivialises a matter that has and will continue to seriously dent the confidence of the public in the Western Cape division’s ability to assign and adjudicate matters. The least Mogoeng could have done was to acknowledge the graveness of the complaint.

The JSC, that Mogoeng chairs, also issued a terse statement last week as a result of being “inundated with requests by the media and the public” to comment on the Hlophe matter. Did the JSC think a complaint against a judge president by his deputy would come and go as a brief footnote?

The JSC, seemingly irritated with another Hlophe hullabaloo, mentions as a first point that Goliath’s complaint was “regrettably leaked to the media”. Really? Is shooting the messenger the most pressing matter on the JSC’s mind?

Despite confirmation that it will investigate the matter (as it should), the JSC provides no comfort to the judges, prosecutors, attorneys, advocates, witnesses, victims and accused persons who must appear before the Hlophes, the acting judges they appointed and the judges they assigned on a daily basis.

Although only the president can suspend a judge based on a request from the JSC, Mogoeng is not powerless in assisting his colleagues in the Western Cape to continue with their work in an environment where justice is also seen to be done.

The request to Mogoeng, that he has resisted so far, is reasonable and fair: as head of the judiciary, ask the Hlophes to take special leave pending the finalisation of the matter.

His continued refusal to do so would be an ominous sign for the future of this most serious investigation.

- Basson is editor-in-chief of News24

Read more on:    jsc  |  mogoeng ­mogoeng  |  john hlophe  |  western cape high court
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