Mpumelelo Mkhabela: Ramaphosa, Lamola must intervene in the Hlophe-Goliath stand-off

The Western Cape High Court. (Ashraf Hendricks, GroundUp)
The Western Cape High Court. (Ashraf Hendricks, GroundUp)

The Western Cape case is no longer narrowly about the conduct of a specific judge or judges. The administration of justice might be at risk. And if that is the case, the matter is beyond the purview of the JSC.

Second-hand gossip, manipulation, verbal abuse, intimate relations, secret recordings, physical attacks, personal scud missiles, power struggles…

The list goes on.

It's the kind toxic cocktail of human interactions you would expect in an ungovernable and lawless social club whose members are permanently intoxicated by stronger-than-average smoke and drink. 

But no. This is the place where citizens of the Republic of South Africa from different backgrounds visit or are summoned to present themselves for the realisation of justice under the rule of law prescribed by our constitutional order. 

It is a place where our laws are not only interpreted but developed. Where the highest level of rational inquiry, evidence-testing, debate and resolution takes place.

It is at the heart of the administration of justice. 

It is the Western Cape High Court, one of the busiest judicial divisions in the country where all kinds of matters are adjudicated - from crime to pertinent constitutional issues. 

As is typical of stuff coming out of a chaotic social club, it's difficult to know who of the members of the court are telling the truth in the perennial business of accusations and counter-accusations. 

A summary goes like this.

Deputy Judge President Patricia Goliath has accused Judge President John Mandlakayise Hlophe of a variety of misdemeanors. 

They include:

  • Hlophe verbally attacked her in chambers, calling her a "piece of **t".
  • He had once physically attacked another colleague.
  • His wife, Judge Gayaat Salie-Hlophe, had an influence in how the judge president runs the court. 
  • Hlophe sought to manipulate the outcome of case involving the legality of the Russian nuclear deal which was former president Jacob Zuma’s flagship energy project.

Judge Goliath further claims that she has been sidelined and has since physically moved her chambers a distance away from the judge president. 

These and other unseemly allegations are stated in a complaint she lodged with the Judicial Services Commission. 

In response, Judge Hlophe lodged his own complaint casting aspersions on the conduct of Judge Goliath. 

Among other things, he denied the allegations against him and described them as "second-hand gossip".

Hlophe claims that Judge Goliath had inserted herself in his personal life; that he had once spoken to Judge Goliath whom he firmly advised to leave his personal matters and focus on her work. 

For her part, Judge Salie-Hlophe lodged her own complaint against Judge Goliath.

She described Goliath’s complaint as "complete fabrication", "eloquently stated gossip", "delusional", constituted a personal "scud missile" against her ...

She went on to suggest that Goliath always had an "unhealthy obsession with my marriage" to Judge Hlophe. 

As the complaints and the counter-complaints are being probed by the Judicial Conduct Committee, following the referral by Deputy Judge President Raymon Zondo, in his capacity as chairman of the JSC, more developments have emerged. 

Judge Goliath had secretly recorded a private conversation with Judge Hlophe where he allegedly hurled insults at her. 

It also emerges on a twitter post that Judge Goliath herself had been recorded in a conversation involving an attorney who usually represents Judge Hlophe.

In the recording, unrelated to the complaint she lodged against Judge Hlophe, Goliath is apparently saying things that might seem unprofessional for a judge as she refers to "rumours in the corridors". 

Some judges in that court want the alleged victim of Judge Hlophe’s physical attack to lodge a complaint or else he risks being seen dishonest as a judge. 

It also emerged recently from a statement issued by Chief Justice Mogoeng Mogoeng that he had been approached by Judge Goliath last year, to complain about her strained relationship with Judge Hlophe and enquired if the colleague whom Judge Hlophe had physically attacked should lodge a complaint or not. 

According to Justice Mogoeng, he advised Goliath to follow the law as he had no powers to intervene; only the JSC could do that.

Judges, according to Mogoeng, are free to open criminal cases with the police against fellow judges. So, the chief justice sort of washed his hands off the matter.

We should be very concerned about this judicial drama series?

Stripped of all the mudslinging and counter-mudslinging, there is a case to be probed - which may or may not be proven - that the administration of justice in the Western Cape is in peril. 

Depending on which side you take, you can point fingers at those you consider are responsible for the degeneration of collegiality in the court and the extent this has become, in the words of Mail & Guardian legal journalist Franny Rabkin, the "new normal".

An objective inquiry looking at whether the judicial brawl has or is compromising the administration of justice in the Western Cape is long overdue.

Previous experiences of separate complaints involving Judge Hlophe and Gauteng High Court Judge Nkola Motata do not inspire confidence in speedy resolution of judicial complaints. 

But the Western Cape case is no longer narrowly about the conduct of a specific judge or judges. The administration of justice might be at risk.

And if that is the case, the matter is beyond the purview of the JSC. 

The matter should be dealt with by President Cyril Ramaphosa and his Justice Minister Ronald Lamola. Both seem to be watching helplessly at the possible collapse of the administration of justice instead of intervening. 

The crisis requires a high-powered independent judicial commission of inquiry to look at the issues which are beyond purview of the JSC – which include the quality of the administration of justice and the morale of the Western Cape bench.

The ultimate aim should be to come up with a constructive solution.

Such an intervention must be strictly in the interest of the administration of justice. A finding that the administration of justice has not been compromised would also be welcome and would inspire public confidence.

Ramaphosa and Lamola are obliged to intervene without compromising the independence of the judiciary.

Doing nothing under the circumstances is tantamount to dereliction of duty.

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