Judges' scandal in South Africa raises questions over Judicial Service Commission

In many African countries a special ceremony is held during January to mark the start of the official court year. No such tradition has yet developed in South Africa. But the 2020 legal year got off to a spectacular start all the same: the deputy judge president of the high court in one of SA's biggest provinces issued an affidavit making sensational claims against the judge president and his wife, who is also a judge in the same division. Now their battle has spread to other parts of the judiciary as well as the Judicial Service Commission which is supposed to deal with complaints involving judges. There are two major issues to note: first, the judge concerned already has an unresolved serious complaint against him from more than 10 years ago, with no sign that it might be heard, let alone finalised, any time soon; second, the JSC has a growing reputation for being unwilling or unable to manage disciplinary issues involving judges.

Read affidavit by Patricia Goliath DJP

Perhaps the biggest shock I have ever experienced while writing about judges and the law in South Africa, was the day I heard that the judge president of the Western Cape, John Hlophe, was in trouble with the Constitutional Court, South Africa’s apex legal forum.

The Constitutional Court told the Judicial Service Commission that Judge Hlophe had attempted to influence some of its bench in a case concerning SA’s now notorious former President Jacob Zuma. 

Those claims were made in 2008, and the history of the matter since then has been an abysmal failure by the Judicial Service Commission to resolve the dispute and reach finality. This is typical of the reputation that the commission has earned – it seems quite unable to sort out matters of discipline involving members of the judiciary. And its decisions, if they are ever made, appear to many members of the public, as well as the profession, to indicate a partisan approach that has little to do with justice.

Fast forward to January 2020 when, out of the blue Judge Hlophe’s official deputy, Judge Patricia Goliath, sent an affidavit to the JSC, outlining very serious grievances against her immediate boss.

Shocking as her affidavit undoubtedly is, the deep unhappiness on the Western Cape bench has been an open secret for some time. Journalists however have tended to avoid the story largely because judges are reluctant to speak on the record.

Now, however, the story cannot be ignored.

Judge Goliath has accused Judge Hlophe of racism, prejudice against her as a woman, unconstitutional behaviour and abuse of power. And that’s just for starters. There’s a clear allegation that the JP had assaulted a fellow judge, and the DJP also mentions the unhelpful and sometimes unpleasant role played by the judge president’s wife who serves on the same bench.

Judge Goliath says the judge president appears to favour his wife, Judge Gayaat Salie-Hlophe. She (Judge Goliath) says he makes insulting reference to her (Judge Goliath) in public and that he has effectively stripped her of her role as DJP. Further she claimed that the JP tried to influence which of the Western Cape judges would hear a case involving Zuma and the fallout from a secret nuclear deal. This is of course the second time that allegations about the JP’s attempts to influence a court hearing matters involving Zuma have emerged.

Her list of complaints also includes racist comments he makes about his white colleagues on the bench.

That last should not come as a surprise to anyone following the career of the JP. Before even the Constitutional Court complaints of his attempts to influence its members, there had been reports of the JP’s attitude to colleagues of different colour and of his rudeness to them, behaviour that appears nothing less than racist.

In response to the initial affidavit by the DJP, Judge Hlophe’s attorney has dismissed her claims as ‘mostly gossip and hearsay’.

But the matter has grown since that initial exchange.

The public and members of the judiciary have turned their eyes to the JSC, criticising its history that seems to feature a distinct lack of speed and failure to act transparently in relation to complaints against judges.  

This growing sense of mistrust is having a serious effect on public confidence in the JSC as a means to hold judges to account. And although the judiciary has survived the Zuma era of ‘state capture’ with its reputation for clean dealing intact, the JSC’s paralysis has the potential to undermine many decades of hard work. This much was made clear in a statement by the judges of the Western Cape bench. They in turn welcomed the JSC statement assuring the public that its special conduct committee would deal with the matter as quickly as possible and ‘without fear, favour or prejudice’.

The reaction of the Chief Justice, Mogoeng Mogoeng, has been difficult to interpret. He has welcomed the announcement of the JSC (which he chairs) to investigate the matter. He has said that it not a matter over which he has control. He has not responded to calls that the three judges implicated in the scandal should be suspended, or at least asked to take leave. And through his spokesperson he issued the following statement: ‘It will be inappropriate for the Chief Justice to entertain any questions relating to a matter that is currently under investigation by the Judicial Conduct Committee [a sub committee of the JSC that initially deals with complaints against judges].’