Opinionista • Paul Hoffman • 22 January 2020 Daily Maverick
Sensational (in the context of the judiciary) and salacious (again, in the context of the judiciary) allegations have been made against Cape Judge President John Hlophe by his deputy, Patricia Goliath. But this is not the first time Judge Hlophe has courted controversy.
Back in the ’90s, shortly after the Judicial Service Commission (JSC) was established, John Hlophe, then an academic, presented his impressive curriculum vitae to the commissioners for their consideration. Humble beginnings, a master’s degree from the University of Cambridge, with earlier degrees from Natal University, and some labour law experience in an adjudicative capacity all spoke to great potential in the charming, but somewhat young (born in 1959) candidate.
He was snapped up to fill a vacancy on the bench of the Cape Supreme Court, now renamed the Western Cape High Court in line with the transformative changes wrought by our new nine-province constitutional order.
Although not the first Zulu-speaker to grace the Cape’s bench (that honour fell to Judge Wilfred Thring), Hlophe was the first Zulu-speaker to preside over a superior court in Cape Town. He was charm personified at first, showing a willingness to learn the ropes and a preparedness not to take himself too seriously. For example: Hlophe spread a story that one of his neighbours in Pinelands, where he bought a home in which he apparently still resides, noticing his style of gardening on the weekends, offered to pay him more if he would only transfer his skills at gardening to the neighbour’s garden.
Soon, too soon it appears, Hlophe rose meteorically through the ranks to become deputy judge president and then the leader of the bench in Cape Town as judge president, a position he still holds. It was only after his elevation to this high-ranking position that the cracks began to show. Questions were muttered on the theme — “is the charm simply a mask”?
Hlophe has been hauled before the JSC disciplinary structures, such as they are, on three separate occasions. The first complaints were referred to a special disciplinary committee consisting of Bernard Ngoepe JP, Craig Howie P and Seth Nthai SC. The two judges have since retired; the senior counsel has been struck off the roll of advocates for soliciting a bribe to end an international arbitration in which he represented the government. His re-enrolment is currently being contested on appeal and a charge of corruption against him is being investigated by the Hawks.
The special committee was set up to look into accusations of moonlighting (doing private work for entities associated with the Oasis Group) tax evasion (non-disclosure of the earnings via the Oasis connection and a family trust set up to receive those earnings), racism (calling an Afrikaans-speaking attorney who had irritated him “a piece of white shit” and inviting him to return to Holland) and bad-mouthing his fellow Zulu speaker, Judge Thring, at a match at the Newlands cricket ground where he was the guest of Norman Arendse SC. A conflict of interest was also alleged in relation to Hlophe giving permission to Oasis to sue Judge Siraj Desai for defamation. The initial complaint was brought by the African Christian Democratic Party (ACDP).
The committee had little appetite for the work with which it was tasked. The following lightly edited exchanges, apropos of the tax evasion aspect, are revealing:
Howie P: Did you declare it (the Oasis income)?
Hlophe JP: To the best of my knowledge Sir, my tax is up to date and I brought proof thereof…
Howie P: My question was, did what you declare include the remuneration from Oasis?
Hlophe JP: I don’t remember what was the arrangement between myself and Oasis with regard to tax in particular but I have not had any queries raised from the tax authorities.
Howie P: Would you just check, we don’t want tax details that don’t have anything to do with this. The question is simply whether the receipts from Oasis were declared.
Hlophe JP: Okay.
At a later stage in the proceedings, in an exchange between Ngoepe JP and Howie P (while Hlophe JP is not present) the former, apparently unaware that the recording equipment is faithfully doing its work, has the following to say:
“The reference to the tax returns… I don’t know where that is going to lead… that, which may be something else altogether… I was becoming quite uncomfortable about such direction because what if somebody hears that he has not disclosed that in his tax returns which means a criminal offence and really… ”
Howie P responds: “That is not a complaint.”
It is abundantly clear from the substance of the ACDP’s complaint that possible tax evasion is indeed a complaint. The passages above show that Hlophe has assiduously avoided directly answering the questions asked of him by President Howie and that the latter has been closed down on this line of questioning by an “uncomfortable” Judge President Ngoepe in their discussion during the proceedings on 13 September 2006, an edited version of which is set out above. Perhaps it is time for the new SARS management to look into the matter by creating an Al Caponesque solution to an intractable problem.
Hlophe received a light admonishment and sailed on, unscathed and incorrigible. Ere long, he was in deeper trouble. The justices of the Constitutional Court complained that he interfered with two of their number in order to influence the outcome of a matter in which Jacob Zuma was a losing litigant; this intervention is both improper and illegal, criminally so. Shamefully, their complaint is still unresolved more than a decade after the events to which it relates took place. The matter is becalmed due to an ongoing dispute as to who should pay for the legal representation of Hlophe. Any port in a storm will do.
Now, the current Deputy Judge President of the Western Cape High Court, Patricia Goliath, has deposed to a rather disjointed but decidedly explosive affidavit dated 15 January 2020, which she submitted to the secretariat of the JSC on the same day. It contains a long litany of complaints, big and small, dating back some five years and implicating Hlophe in all manner of improprieties ranging from his alleged gender-based violence to attempted rigging of the outcome of court cases and nepotistic tendencies. His lack of collegiality and arrogance shine through, even his rude and coarse nickname for the diminutive Goliath has the ring of veracity to those who remember the context of his invitation to “go back to Holland” which featured in the first round of complaints about his misconduct.
The saddest feature of the Goliath complaint is its revelation, to outsiders at least, that the traditional Friday morning meeting of all the judges of the division is no more, due to Hlophe’s doing. Those meetings: JP at the head of the table, flanked by his senior colleagues with the junior and acting judges at the furthest end of the table, were a primary source of the esprit d’corps of the judges located in Cape Town. They presented a great opportunity to discuss the issues affecting the proper administration of civil and criminal justice in the province. To dispense with it is akin to reverting to authoritarianism of the kind that was supposedly ended when the new Constitution came into force. Perhaps the hegemonic control of the levers of power in the Cape judiciary is the aim of Hlophe’s move.
If it is true, as alleged by Goliath, that Hlophe is a marauding wife beater, then he is a common criminal and unfit to hold judicial office. If it is true that he has physically assaulted a male colleague (not identified by name) then ditto. Either way, gross misconduct is in evidence and the evidence needs to be tested without delay and with reference to the evidence of the beaten wife and colleague, the relevant hospital records and the credibility of those who deny the detailed content of the affidavit deposed to by Goliath.
Of course, if Hlophe had an ounce of humility, a gram of decency or even a smidgeon of insight into the misery, chaos and destruction which he has wrought over the years, he would resign immediately. He won’t.
It is accordingly incumbent on the JSC not to drop the ball on this occasion. Swift attention to the complaint could be facilitated if the judges of the court call for an early hearing of the matter in unison. It must be hell on earth to work in the atmosphere described in Goliath’s affidavit.
The JSC would be well advised to give priority attention to the Goliath complaints; gender-based violence, criminal acts and nepotistic tendencies are all gross misconduct which ill befit any judge, let alone judge president. DM