Judge President John Hlophe slams judges who won't work together
20 March 2020
Western Cape Judge President John Hlophe has, in no uncertain terms, reprimanded judges in his division, including senior members of the judiciary, who refuse to work with their colleague, Judge Mushtak Parker.
The judges say Parker lied about an alleged assault in his chambers by the judge president himself.
But Hlophe responded: "By deciding with whom they will, or will not, sit in cases allocated to them by me, the judges concerned are arrogating to themselves a power that is vested in me by virtue of my office as judge president."
He warned them that their action could be in breach of the judicial code of conduct.
The matter has a long history and has its roots in a 14-page gross misconduct complaint Deputy Judge President Patricia Goliath lodged against Hlophe and his wife, Judge Gayaat Salie-Hlophe, accusing them of compromising the proper functioning of the court.
Salie-Hlophe is also a judge in the Western Cape.
Among the allegations in that complaint, was a claim that Hlophe had assaulted a fellow unnamed judge in his chambers. The judge was later identified in media reports as Parker.
Hlophe has since dismissed the allegations in the complaint and accused Goliath of leaking it 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".
On 11 March, Judge André Le Grange wrote to Hlophe and said he refused to preside over matters with Parker due to what he called a "prevailing climate of untruthfulness".
Le Grange said he had seen an affidavit which Parker deposed to in which Parker detailed what transpired during the alleged assault. The affidavit was given to a judge for safekeeping.
However, he noted that when Hlophe denied the allegation in an affidavit of his own, Parker was "shown this portion of the affidavit relating to him" and agreed with Hlophe's version of the events.
Le Grange expressed concern over the conflicting versions and said he resolved to not preside over matters with Parker until the complaint was concluded.
This week, 10 judges supported him by writing a letter of their own to Hlophe in which they also refused to preside over matters with Parker.
But Hlophe said on Thursday that the views they expressed "are held by a minority of the judges" in the division, and that the "manner of publication, and the tenor and tone of the correspondence is disconcerting".
"By deciding with whom they will, or will not, sit in cases allocated to them by me, the judges concerned are arrogating to themselves a power that is vested in me by virtue of my office as judge president."
Hlophe said judges were bound by the rule of law, the principles of legality and the rules of natural justice, and that it was not up to individual judges "to act as investigator, prosecutor, judge and executioner".
"Whatever the personal views of judges may be with regard to the propriety or otherwise the conduct of any judicial officer, a judge cannot simply take the law into their own hands," Hlophe said.
The judge president added that the "intended actions of judges concerned may well be in breach of various provisions of the Code of Conduct".
He reminded judges that they must perform all assigned judicial functions diligently and not engage in conduct that is "prejudicial to the effective and expeditious administration of justice or the business of the court".
Judges also needed to avoid any personal issues with colleagues and seek to foster collegiality, Hlophe added.
Antagonism, hostility undermines constitutional obligations
"If judges were free to select which colleagues they will sit with in a matter, the consequences could be disastrous for the judiciary as a whole.
"It could mean, for example, that judges who perceived other judges as being beneficiaries of apartheid or who express political views antithetical to their own, could then justifiably refuse to sit with such colleagues," Hlophe said.
Judicial independence "is not a private right or a principle for the benefit of judges as individuals and does not justify judicial misbehaviour or provide an excuse for failing to perform judicial functions with due diligence or for otherwise acting contrary to the Code of Judicial Conduct".
He added that "antagonism, hostility and conflict amongst colleagues undermines the very core of our existence as judges and seriously retards the fulfilment of our constitutional obligations".
Hlophe reminded the judges that he had always had an "open-door policy" and invited colleagues to approach him, should they wish to.
He said "we recently achieved the accolade of being one of the best performing divisions in the country" and added that "we must continuously and consistently strive to do better".
'Contrived, purely opportunistic' - Parker's response
Parker also hit back at Le Grange in a letter on 13 March, calling Le Grange's decision "contrived, purely opportunistic, and perhaps a cynical attempt to influence the proceedings involving the judge president which are currently before the Judicial Conduct Committee (JCC)".
Parker said, that upon reflection, he realised the alleged altercation "may not have unfolded in the way that [he] initially perceived".
"This quite understandable given my emotional state at the time. I therefore came to the firm but inescapable conclusion that a complaint of my nature in this regard, will be both inappropriate and unnecessary," he said.
Parker asserted further that he regarded the matter with Hlophe to be personal, private, confidential and fully resolved.
He denied that he had told Le Grange or anyone else that he was influenced or persuaded by any of his colleagues to not pursue a complaint against the Hlophes, accusing Le Grange of wanting to destroy the judge president at any cost.
"As far as I am concerned, I am satisfied that there is absolutely no basis for a complaint against the judge president, and [I] request you once again to respect my decision," Parker said.
'Likely guilty of gross misconduct'
Deputy Chief Justice Raymond Zondo referred the matter between Goliath and Hlophe to the Judicial Conduct Committee (JCC), News24 previously reported.
On 12 February, the secretariat of the JCC said in a statement: "After considering both Deputy Judge President Goliath's complaint against Judge President Hlophe and Judge President Hlophe's complaint against Deputy Judge President Goliath, the Deputy Chief Justice was satisfied in terms of Section 16(1) of the Judicial Service Commission Act... that each one of the two complaints, if established, would be likely to lead to a finding by the Judicial Service Commission that the respondent judge in each complaint is guilty of gross misconduct."
