The Cape Bar Council has written to Chief Justice Mogoeng Mogoeng, requesting that Western Cape High Court Judge President John Hlophe and his deputy Judge Patricia Goliath not perform their functions as the heads of the division, or that of judges, until there is an outcome to the explosive allegations made in a scathing complaint to the Judicial Service Commission.The council has further asked that Judge Gayaat Salie-Hlophe, Hlophe's wife, also not perform her functions until the complaint has been handled, and that all three be requested to take voluntary leave.In a letter sent on Monday - the start of the new court term - the council wrote that it accepted that Mogoeng alone did not have the authority to direct the three judges to go on leave, or to suspend the judge president or Salie-Hlophe pending the outcome of the prescribed processes. It noted there was no complaint with the Judicial Service Commission against Goliath.The letter reads: "That said, there is nothing in the Constitution or the [Judicial Service Commission] Act which prohibits you, in your capacity as the leader of the judiciary in South Africa, from asking the Judge President, the Deputy Judge President and Judge Salie-Hlophe to take voluntary leave until the outcome of the process… is known. "The council respectfully suggests that you direct such a request to each of the three judges, if you have not done so already."On January 15, Judge Goliath lodged an official complaint with the JSC, alleging "gross misconduct" by Judge President Hlophe and Judge Salie-Hlophe, which Goliath says compromises the proper functioning of the Western Cape High Court.In a scathing 14-page affidavit, Goliath accused Hlophe of preferential treatment for his wife, assaulting and verbally abusing two judges, and attempting to influence the appointment of judges perceived as "favourably disposed" to former president Jacob Zuma to preside over the so-called Earthlife Africa case involving the nuclear deal.'Status quo cannot prevail'She said a climate of fear and intimidation prevailed in the high court, claiming that she was operating in an "unsafe, unhealthy and oppressive working environment".According to Goliath's complaint, Salie-Hlophe wielded enormous power, including determining her own working days and hours, as well as having major clout in the appointment of acting judges.Salie-Hlophe, in turn, accused Goliath of attempting to oust the judge president in order to succeed him, describing herself as "collateral damage".She further accused Goliath of racism, ulterior motives and having an "unhealthy obsession" with her marriage.Hlophe, through his attorney Barnabas Xulu, denied there was any merit to her complaint, saying it contained gossip, rumours and information "obtained from the grapevine".The council, in a letter dated January 22, asked the Chief Justice to urge the JSC to investigate the allegations quickly and thoroughly, requesting that "urgent steps" be taken in the interests of the administration of justice pending the outcome of the prescribed processes for the handling of Judge Goliath's complaint.It said that given the high judicial offices of the Deputy Judge President and the Judge President, the nature and seriousness of the Deputy Judge President's allegations concerning the leadership and administration of the division and the consequences for public confidence in the judiciary and the proper functioning of the division, it believed that the "status quo cannot prevail" when the term started until the complaint had been resolved.The Chief Justice responded on January 26, pointing out that the complaint had been referred to the Judicial Conduct Committee - a creation of the Judicial Service Commission Act. According to Mogoeng, he was not aware of any provision in the Constitution, any statute, rule or regulation that empowered the Chief Justice to "act in a manner you seem to be suggesting", in relation to any court."Where I am legally empowered to act, I will not hesitate to do so. But, legality forbids that any of us acts to please the public that assumes that the power to do what they think is right has been assigned, when it is in reality not so," his response reads.The chief justice, Mogoeng wrote, does not have the power to have a judge go on leave of any kind or to suspend a judge. Only the JSC can make this recommendation to the executive after or in the course of processing a complaint.