Hlophe to appeal Mogoeng ruling, says it fails 'to uphold elementary standards of justice'

Judge John Hlophe.
Judge John Hlophe.
Mary-Ann Palmer
  • Judge President John Hlophe's lawyer says Chief Justice Mogoeng Mogoeng appears to have been influenced by a 'deeply spiritual relationship' with Deputy Judge President Patricia Goliath.
  • The chief justice's recommendation "does not accord with the elementary principles of the Constitution", attorney Barnabas Xulu wrote.
  • The Judicial Service Commission confirmed the letter has been forwarded to the deputy chief justice.

Western Cape High Court Judge President John Hlophe's lawyer has written to the Judicial Conduct Committee to inform it of his intent to appeal a recommendation that a tribunal be established to investigate gross misconduct claims against him.

In the 10-page letter, he charges that Chief Justice Mogoeng Mogoeng appeared to have been influenced by a "deeply spiritual relationship" with the subject of his own complaint, Deputy Judge President Patricia Goliath.

And, in an apparent stab at the backlash Mogoeng had received following his utterances on Israel, the letter also states that "all who appear to have been the victims of a stinging rebuke and ruling of the chief justice" were Muslim.

Written by attorney Barnabas Xulu, the letter reads that the chief justice's recommendation "does not accord with the elementary principles of the Constitution, in that it has not been arrived at in accordance with the principles of fairness, impartiality and independence".

"Judge President Hlophe accordingly considers it a sacred constitutional duty of any judge to challenge a ruling that fails to uphold the elementary standards of justice, and in that regards will be appealing the ruling of the chief justice on grounds that will be set out more succinctly in that application," Xulu wrote.

READ | Goliath vs Hlophe: 3 allegations Chief Justice recommends tribunal investigate

"The public confidence in the constitutional work of judges would rightly be seriously undermined if the judge president were to participate in the chief justice's failure to apply principles, ordinarily expected of judges in the performance of their adjudicative functions, of independence, impartiality and fairness."

In January, Goliath lodged a 14-page complaint in which she accused Hlophe of gross misconduct. She said that this compromised the proper functioning of the highest court in the province.

Of her allegations - which included 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, as well as preferential treatment for his wife, Judge Gayaat Salie-Hlophe - Mogoeng last week recommended a tribunal investigate three of the serious claims.

'Biased mind'

These are the alleged assault on Judge Mushtak Parker, which he himself has denied, despite an unsigned affidavit filed with a fellow judge to the contrary, the use of abusive language for allegedly calling Goliath a "rubbish" and "a piece of shit" when he chased her out of his chambers in 2017, and abuse of power in relation to the office of the deputy judge president by appointing a "very junior judge" to act on his behalf, instead of Goliath.

A counter-complaint - in which Hlophe said Goliath had, among others, violated the principle of collegiality when "she secretly and covertly" recorded a meeting "with a view to trapping" him, as well as accusing her of making racist comments to Salie-Hlophe about her marriage - was dismissed by Mogoeng.

"The chief justice's dismissal of such serious allegations against the deputy judge president, without giving any reasons whatsoever, is demonstrative of a biased mind," Xulu's letter reads.

ALSO READ | Mogoeng: Tribunal must look into 'serious' gross misconduct claims against Judge Hlophe

He alleged that Mogoeng and Goliath had an apparent close relationship, and that Mogoeng had "covertly and secretly" met with her to hear her complaint when she was supposed to be presiding over a case.

"Because the chief justice was facilitator of this covet (sic) meeting, it is clear that he has placed himself in a position of a witness to be an impartial and independent adjudicator of the dispute," Xulu wrote.

Mogoeng "demonstrates actual bias for which he is automatically disqualified to preside over the matter", the letter continues.

"The chief justice, it appears, was influenced by the fact that he may well have nurtured a deeply spiritual relationship with Deputy Judge President Goliath with whom, it is rumored, he engaged in fervent prayers while she served at the Constitutional Court as an acting judge for a period of one and half years," the letter reads.

"This relationship, if it existed, could explain why the chief justice tolerated such gross misconduct in relation to the complaint against deputy judge president.

"Unless specifically denied, there is therefore a reasonable apprehension that his spiritual relationship with Deputy Judge President Goliath swayed his sense of justice, fairness, impartiality and independence - resulting in a biased and unjustified ruling on his complaint."

'Victims of stinging rebuke'

Hlophe, his wife Gayaat Salie-Hlophe, as well as Parker, were Muslim, "all who appear to have been the victims of a stinging rebuke and ruling of the chief justice".

Xulu wrote that they were "particularly distressed" that Mogoeng's decision "follow immediately in the wake of his heated pro-Zionist political statements, which not only intruded into the executive's exclusive domain in matters of foreign policy, but raised questions about our judiciary's commitment to international human rights issues and possibly brought the entire South African judiciary into disrepute".

Mogoeng has received criticism by several organisations and high-ranking officials, including International Relations and Cooperation Minister Naledi Pandor, after the Jerusalem Post last month reported that the chief justice lamented South Africa's adoption of a lopsided attitude towards the Israel-Palestinian conflict, saying it would have greater influence if it displayed a more balanced approach.

MORE HERE | Chief Justice Mogoeng refuses to apologise for Israel comments: 'There will be no retraction'

"We remain extremely concerned that Chief Justice Mogoeng's religious beliefs and commitments and statements, that have roundly been regarded as insensitive to the Palestinian cause, have given rise to an appearance of lack of impartiality on the part of our chief justice in relation to persons who have religious identities shared by the Palestinians Muslims," Xulu wrote.

According to him, the chief justice has "failed the accepted test of fairness, impartiality, independence and justice in his handling of this serious dispute".

"Rather than provide the leadership of a sober, independent, fair-minded and impartial adjudicator of a dispute among judges, he has mired this matter in further litigation controversy that is likely to create more damage to judicial independence, the integrity of the judicial office and public confidence in the judiciary."

Sello Chiloane, of the Judicial Service Commission (JSC), confirmed the letter has been forwarded to the deputy chief justice, who is the acting chairperson of the Judicial Conduct Committee, "for his consideration".

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