Why the judicial misconduct complaint against judge President Hlophe is doomed to fail

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By: Paul M. Ngobeni

Western Cape Deputy Judge President Goliath’s unprecedented complaint of gross judicial misconduct against both Judge President Hlophe and her colleague Judge Salie-Hlophe is doomed to be dismissed as it is deeply flawed. It is a grotesque minstrel show designed to entertain white racists obsessed with rabid hatred for JP Hlophe. Also, it emblematic of the highly ill-disciplined judiciary thriving in a highly toxic political environment and mired in partisan politics. JP Hlophe has battled against enormous odds to transform the Wester Cape judiciary and his achievements as leader of the most well-run division of the High Court were recognized in newspaper columns.

For starters, the filing of the complaint has already boomeranged against Goliath – she has now been exposed as a racist who referred to Judge President Hlophe as “an old black man”, who objected to an interracial marriage of her colleague and expressed her perverse gratitude that at least she was not a “little kaffertjie.” She must now automatically recuse herself from a whole slew of cases involving black Africans she so passionately hates. It matters not that the usual racists from FUL and the Cape Bar Council have not expressed any shock or outrage – the public disclosure of these unbridled acts of bigotry have rendered Goliath uniquely unfit to serve as a Deputy Judge President and as a judge for that matter. The sidelining and reduction of her role she complained about must now become a reality as it would now be unconstitutional for JP Hlophe to allow her to make decisions in cases involving black men or others she contemptuously refers to as little “kaffertjies.” Racist judge Mabel Jansen was forced off the bench for holding similar racist views about black Africans. It would be untenable for Goliath to be allowed to perform any judicial functions that would further inflict grave harm on the Court.

In her gadarene rush to nail JP Hlophe, Judge Goliath overlooked pivotal provisions of the Code of Judicial Conduct. Section 11 of the Code entitled “Association” stipulates as follows:
(1) … Except insofar as is necessary for the discharge of judicial office, a judge does not become involved in any political controversy or activity.

(2) A judge does not take part in the activities of any organisation that practises discrimination inconsistent with the Constitution.

(3) A judge does not lend the prestige of the judicial office to advance the private interests of the judge or others.

(4) A judge does not use his or her judicial office to secure personal advancement or any personal benefit.

Blinded by sheer ambition to succeed JP Hlophe as judge president, Goliath hash jettisoned factors such as collegiality, fealty to the Constitution and basic decency that other jurists would have been sensitive to. Goliath dredged up a story about a “conservative” acting judge who was tried for terrorism during apartheid and was acquitted. She claims most judges who are ignorant of the presumption of innocence principle dislike this acting judge for merely having been accused and that JP Hlophe was wrong to appoint him. But the Minister not Hlophe appointed the judge. Goliath has now exposed her as a racist who “practises discrimination inconsistent with the Constitution” – she regards black Africans as “kaffertjies” and is vehemently opposed to inter-racial marriages. She also appears to be lending the prestige of the judicial office to advance her private interests and fulfill her ambition to have JP Hlophe removed so she can succeed him as the judge president.

Goliath has also ignored the principle that all judges have a duty to act in a reserved manner at all times. In Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, para. 107 the Canadian Supreme Court, defined the duty to act in a reserved manner as follows, (per Gonthier J).:
The duty of judges to act in a reserved manner is a fundamental principle. It is in itself an additional guarantee of judicial independence and impartiality, and is aimed at ensuring that the public’s perception in this respect is not affected. The value of such an objective can be fully appreciated when it is recalled that judges are the sole impartial arbiters available where the other forms of dispute resolution have failed. The respect and confidence inspired by this impartiality therefore naturally require that judges be shielded from tumult and controversy that may taint the perception of impartiality to which their conduct must give rise.

Mr. Justice Gonthier went on to point out that the duty to act in a reserved manner had been enshrined in principle at the international level in various documents, including the Basic Principles on the Independence of the Judiciary which provides inter alia:

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly ; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
(Emphasis by Gonthier J.)

In common with the other ethical standards which judges must apply to their conduct both in and out of court, the ultimate purpose of the duty to act in a reserved manner is to sustain the litigant’s confidence in the judiciary so as to ensure the permanence of the rule of law.
The procedure Goliath followed in the filing of the Complaint exposes that her ulterior purpose was to invoke public condemnation of JP Hlophe and bring political pressure on him to be suspended or to resign immediately. Goliath ignored the almost universal principle that the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. Most importantly, Article 17 of the UN Basic Principles of the independence of the judiciary provides as follows:

“A charge or complaint made against a judge in his or her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing, the examination of the matter at its initial stage shall be kept confidential unless otherwise requested by the judge”.

Confidentiality is intended to encourage complainants to express their concerns without fear of reprisal and to protect a judge’s reputation and the integrity of the judicial process from unsubstantiated allegations. Certainly JP Hlophe has never at any time waived his right to confidentiality. By her own admission, Goliath’s complaint involves alleged case allocation events which occurred more than five(5) years ago. She totally disregarded the requirements that accused judges are entitled to have complaints against them processed “expeditiously and fairly under an appropriate procedure” and that said judges shall have “the right to a fair hearing.” Unquestionably, Goliath’s leaking of the complaint was a deliberate calculated political ploy to subject JP Hlophe and Judge Salie-Hlophe to the torture of public condemnation and to increase calls for their suspension and ultimate removal from the bench.

Substantively, Goliath’s complaint exposes her shocking lack of knowledge of basic legal principles and her absolute lack of judicial leadership qualities. Contrary to Goliath, Section 175 of our Constitution leaves the matter of appointment of “acting judges” in the hands of the executive and not the judiciary. Section 175 entitled “Acting judges” states that:

(2) The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.

The Constitution clearly means that the Minister must consult the Judge President before appointing the acting judge. But no concurrence of the latter is required. Where a statute requires a functionary to act “after consultation” with another functionary, this requires no more than that the ultimate decision must be taken in good faith, after consulting with and giving serious consideration to the views of the other functionary. Clearly Goliath is barking up a wrong tree!

The decision to appoint acting judges is made by the Minister who has unfettered control over acting appointments. Goliath has waded into the muddied political waters by questioning the state’s expenditure of money in appointing an acting judge from outside the Western Cape Province or acting appointment of a person who was accused of terrorism but ultimately acquitted. Frankly that is a political decision of the executive and is none of her business.

By what legal yardstick does Goliath hope to charge JP Hlophe with gross judicial misconduct for a decision he cannot and did not make? How does a political decision taken by or made by the Minister as a member of the executive become an impeachable conduct for JP Hlophe? Equally ill-fated and lacking in credibility is Goliath’s pathetic attempt to accuse Judge Sallie-Hlophe of having any role in appointing acting judges.

Goliath’s jeremiad about JP Hlophe’s case allocation exposes further her shocking ignorance of the law. Goliath cites the nuclear energy case as an example of Hlophe’s alleged manipulation of the system. She asserts that more than five years ago the JP Hlophe chose to discuss case allocations with her even though he had no obligation to do so. Most important, when she voiced her disagreement, he did not overrule her. Instead he listened and allowed the matter of the Nuclear deal to be adjudicated by the judges assigned to it. On judicial matters, Hlophe’s position which firmly anchored in the Constitution is that he is the “first among equals” (in accordance with the principle of primus inter pares). But Goliath shows complete ignorance of the judge president’s work as the administrative and managerial head of the court.
The JSC may not be used to adjudicate a Judge President’s managerial and administrative decisions over matters which are solely within the encincture of his discretion.

Goliath’s preference that certain complex matters be assigned to senior or experienced judges who are mostly white apartheid appointees is the most retrogressive anti-transformation step. In our High Courts all judges are considered equally qualified and competent to handle matters as they come. Because of the generalist character of High Court judges, the case assignment system is quite flexible – the Judge President may assign a case to a particular judge depending on the existence of circumstances he deems sufficient. Our judges’ career advancement is connected to their performance, for example measured through the ‘quality’ and the number of judgments they issue. Contrary to Goliath’s hairy-brained suggestion, the importance of the judge president in the case assignment system, which is inextricably related to the internal independence of the judges cannot be reduced to assigning cases to so-called senior mostly white male judges.

Goliath’s Complaint has all the hallmarks of a paranoid incompetent judge with no appreciation of collegiality. She takes a calculated risk and makes the most serious allegation that JP Hlophe assaulted a male colleague who had allegedly engaged in acts of sexual harassment. But there is no independent confirmatory statement from the alleged assault victim. Even if JP Hlophe had roughly handled a miscreant judge who pinched the buttocks of his female judicial colleagues, most of us would not judge JP Hlophe harshly. Almost universally, sexual harassment within the judiciary is becoming exposed as a virulent cancer that must be harshly dealt with. I predict a disaster for Goliath when the alleged assault victim denies both that he engaged in sexual harassment and that he was assaulted by Hlophe as a consequence. Goliath’s credibility will be in tatters and it would be untenable to keep her in judicial leadership role or to allow her to adjudicate cases involving persons she contemptuously refers to as “kaffertjies.”