TimesSELECT 22 January 2020

Western Cape High Court judge president John Hlophe has been accused by his deputy of trying to influence the appointment of judges in the 2015 nuclear deal case.

In a far-reaching “gross conduct” complaint with the Judicial Services Commission (JSC), deputy judge president Patricia Goliath accuses Hlophe of attempting to interfere in the legal challenge to the intergovernmental agreement between SA and Russian nuclear agency Rosatom.

At the time, Goliath says Hlophe told her “criticism of former president Jacob Zuma with regard to the controversial nuclear deal was unwarranted”. 

“He attempted to influence me to allocate the matter to two judges he perceived to be favourably disposed towards the former president. I immediately dismissed the idea,” she says, adding that, though unhappy, Hlophe did not pursue the matter.

The R1-trillion estimated cost of the nuclear programme – equivalent to about 60% of government expenditure in the 2018/19  fiscal year – would have crippled the economy, experts have previously said.  

It was eventually scuppered in 2017 after the high court ruled the intergovernmental agreements that would have followed it were unlawful, after a challenge by environmental activists.

Goliath has also laid a complaint against Hlophe’s wife, judge Gayaat Salie-Hlophe, over alleged preferential treatment.  

Hlophe’s lawyers have slammed Goliath’s complaint as based on “gossip”.

“Our client will show that there is no merit to the complaint which brings the administration of justice into serious disrepute … [It is] based on gossip, rumour, irrelevant material and information obtained from the grapevine,” attorney Barnabas Xulu stated.

Hlophe is now facing the prospect of a JSC misconduct inquiry over allegations that he sought to influence two Constitutional Court justices to rule in favour of Zuma during the then ANC president’s 2008 challenge to the warrants used to secure thousands of documents that were later used in his corruption trial.

That hearing has been defined by delays and legal challenges, and has yet to get off the ground. Hlophe denies any wrongdoing.

Goliath, who recently served as an acting justice in the Constitutional Court, now states in an affidavit filed at the JSC that this “misconduct compromises the proper functioning of our court, the concomitant imperatives of integrity, and significantly and severely impinges on the court’s dignity”.

“I am sharply aware of the broader ramifications of this complaint,” says Goliath.

“However, I am left with no option but to pursue it in the light of the continuous and sustained assault upon my dignity by [Hlophe], who makes my working conditions intolerable.”

Goliath was appointed as deputy judge president in 2016. She acted at the Constitutional Court in 2018 and returned to the high court in April 2019. It was then, she alleges, that her duties as deputy judge president were “suspended” unilaterally by Hlophe.

“There was absolutely no open process with regard to the suspension of my duties, and other judges were not informed that I was no longer functioning as the deputy judge president. This caused me considerable embarrassment, especially when judges or counsel sought an audience with me.”

While Hlophe’s lawyers have criticised Goliath’s complaint as based on nothing but gossip, she claims the judge president has accused her of “not supporting him” and admitted she and he had had a number of disagreements, which Goliath says were based on her seeking to “uphold the constitution”.

She has also accused Hlophe, among other things, of giving “preferential treatment” to his wife.

 “From my own observations, it was apparent that she determined her own working days and hours, this while I was being micromanaged by [judge president] Hlophe’s registrar.”

Goliath says Hlophe’s decision to allocate the high-profile murder trial of Jason Rohde, who stood accused of killing his wife, to Salie-Hlophe, caused “considerable unhappiness” in the Western Cape division because she was one of the most junior judges. Goliath says she believed a more senior judge should be given the case, and refused to endorse Salie-Hlophe’s appointment to hear it.

As a result, she says, she got “the silent treatment” from Salie-Hlophe, who she alleges is “actively involved” in the management of the court.

Rohde has been released on bail pending his legal challenge to his conviction and sentence by Salie-Hlophe in the Supreme Court of Appeal.

Xulu, meanwhile, states “it would be unconstitutional for a judge president to allocate cases to judges in the division based on the date of their appointment”.

“[Goliath’s] view that judges are allocated cases based on their seniority belies the judicial attributes presumed to exist in judges. Allocating work to judges based on an unlawful classification of judicial officers is a serious threat to judicial independence and our client will not permit that practice.”

He further adds that it “appears that the deputy judge president’s complaint has nothing to do with judicial misconduct but a series of gossips, rumourmongering and information allegedly obtained from the grapevine.

“The deputy judge president obviously disagrees with the management of the division, which is solely reserved for the judge president. It is well known that as a result of her disagreement with the management style of the division, there is tension between the deputy judge president and the judge president.

“Despite this tension though, it is a well-known fact that the Western Cape High Court division remains one of the top-performing divisions in the country, well above the established norms and standards in the judiciary.

“It is unfortunate that the complaint, rather than raise legitimate issues that improve this performance, brings disrepute to the court.

“Our client will demonstrate at the right time before the correct forum that the complaint revealed a deeply worrying standard of judicial competence from a member of the bench in the position of the deputy judge president.”

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