Complaints which Western Cape Judge President John Hlophe and his deputy, Patricia Goliath, lodged against each other, should be referred to Deputy Chief Justice Raymond Zondo for an inquiry to be conducted in terms of Section 17 of the Judicial Service Commission (JSC) Act.
This was the decision which the Judicial Conduct Committee (JCC) made by a majority of two to one, according to a statement released on Tuesday.
"In reaching this decision, the majority, as per Justices [Dumisani] Zondi and [Phineas] Mojapelo held that, on the available evidence and in the absence of Goliath DJP's response and representations, which is the material that the committee had to consider at its meeting, an inquiry in terms of Section 17 was required."
The two reasoned that, following the inquiry, a finding could still be made that either one or both complaints should be referred for investigation and reported on by a tribunal.
The statement further indicated that, in a minority decision, Judge Nambitha Dambuza felt both complaints warranted a referral directly to the JSC with a recommendation that they be investigated by a Judicial Conduct Tribunal.
"Dambuza J held that both complaints alleged extremely serious misconduct by the judges that, if established, would have had a seriously negative impact, not only on the direct victim thereof, but the wider judiciary."
On 12 February, Zondo – in his capacity as the chairperson of the committee - referred the two complaints to the JCC, to consider whether it should recommend to the JSC that the complaints be investigated and reported on by a tribunal.
He said, after considering the complaints in terms of Section 16(1) of the JSC Act, he was satisfied that, if established, it would be likely to lead to a finding by the JSC that the respondent judge in each complaint is guilty of gross misconduct.
In January, Goliath lodged a 14-page gross misconduct complaint against Hlophe and his wife, Judge Gayaat Salie-Hlophe, whom she said compromised the proper functioning of the Western Cape High Court.
Among her claims were preferential treatment for his wife, also a judge in the division, the assault and verbal assault of fellow judges and an attempt 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.
In a 100-page affidavit to the JCC, Hlophe said the complaint had "all the hallmarks of a paranoid judge with little appreciation of collegiality, restraint, composure and confidentiality".
He, in turn, accused Goliath of leaking her complaint to the media in a "malicious and bad faith attempt to generate public outrage, lynching and condemnation of my leadership of the division that would support calls for my immediate suspension and removal".
Now that the matter has been referred to Zondo for an inquiry, it is inquisitorial in nature and there is no onus on any person to prove or disprove any allegation of fact.
Upon the conclusion of the inquiry, Zondo or a committee member conducting the inquiry may do either of the following:
- They may dismiss one or both complaints.
- They may find that either one or both complaints have been established and that the respondents have behaved in a manner unbecoming of a judge, and impose the remedial step, such as an apology, reprimand, written warning, any form of compensation or counselling on the respondent.
- They may recommend to the committee to recommend to the commission that one or both complaints should be investigated by a Judicial Conduct Tribunal.