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Western Cape High Court Judge President John Hlophe has reduced the gross misconduct allegation lodged against him by his deputy as a complaint that has "all the hallmarks of a paranoid judge with little appreciation of collegiality, restraint, composure and confidentiality".
In a 100-page, no-holds-barred affidavit to the chairperson of the Judicial Conduct Committee, Judge Hlophe accused Deputy Judge President Patricia Goliath of leaking her complaint, which was filed with the Judicial Service Commission (JSC), to the media "for no constitutionally sound reason but to promote public antipathy towards me and the administration and to trigger a malicious process for my removal as judge president".
"This was done to advance personal interests that would follow my anticipated suspension or removal. The leaking … was not done to inform the public on matters of public interest but was 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."
14-page complaint
On 15 January, Judge Goliath lodged a 14-page complaint against Judge Hlophe and his wife, Judge Gayaat Salie-Hlophe, accusing them of gross misconduct which she charges compromised the proper functioning of the highest court in the province.
Among the claims contained in the document was that he attempted to influence the appointment of judges perceived as "favourably disposed" to former president Jacob Zuma to preside over the so-called Earthlife Africa case involving the nuclear deal, preferential treatment for his wife as well as assaulting and verbally abusing two judges.
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Judge Goliath said a climate of fear and intimidation prevailed in the High Court, where Judge Salie-Hlophe allegedly wielded enormous power, including determining her own working days and hours as well as having major clout in the appointment of acting judges.
"The procedure that Deputy Judge President Goliath followed in the filing of the complaint clearly suggest that her chief anxiety was to invoke public condemnation, the lynching of the judge president and to bring extravagant political pressure on him, even before the JSC dealt with the merits or demerits of the complaint," the Judge Hlophe said in his affidavit, dated Friday, 7 February.
Responding to every paragraph in the complaint lodged against him, he argued the claims were based on false allegations or allegations that do not meet the constitutional standard for judicial misconduct.
Explosive affidavit
Judge Goliath in her explosive affidavit alleged Judge Salie-Hlophe was involved in the management of the court, calling it "another false and malicious allegation" made with the "deliberate intention of undermining the public confidence in the administration of the courts".
"She made this malicious accusation without any reference to evidence that supports her statements," he countered.
Judge Hlophe challenged his deputy to prove her claim that Judge Salie-Hlophe was involved in allocating cases by disclosing specific ones or it "must be concluded that she has manufactured false allegations".
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Judge Salie-Hlophe had also never played a role in the appointment of acting judges, he maintained.
He had an informal arrangement with the Cape Bar Council, Black Lawyers Association and National Association of Democratic Lawyers which often sent him a list of its members available for acting appointments, Judge Hlophe said, attaching one as an example.
He also asked for recommendations and comments from his colleagues, he added.
Allegations of physical violence and verbal assault were also dismissed by Judge Hlophe in his extensive response.
Judge Goliath, in her complaint, alleged Judge Hlophe had assaulted a judge and was convinced by his colleagues not to file a criminal complaint.
Alleged sexual impropriety
The allegation involved alleged sexual impropriety in an incident involving Judge Salie-Hlophe.
Judge Hlophe, in his written response, said the judge had "with commendable haste" approached Judge Salie-Hlophe to resolve the issue.
The judge had wanted to see him about the incident as Judge Salie-Hlophe was his wife.
He said he had gone to the judge's chambers and told him he appreciated his apology to Judge Salie-Hlophe but "cautioned him against being perceived to be inappropriate in his interaction with women colleagues".
During their discussion, they had disagreed on a "related issue" that "I am an African from KwaZulu-Natal and married to a Muslim woman".
He said they had for a few days not spoken to each other and the judge had spoken to some of their colleagues about the confrontation "with a view of triggering a mediation", which resulted in a boardroom discussion where he accepted they had "differing views on these matters".
"The matter is old. It is private. It has been resolved between the parties concerned," Judge Hlophe's response read.
"To report me to the JSC for gross misconduct for a private dispute that I had with a colleague and to characterise that dispute as assault without any personal knowledge of the facts is grossly unfair, malicious and done in bad faith and scandalous.
"It is intended to manufacture a damaging public controversy in the administration of the court and my leadership."
Judge Hlophe in his affidavit denied "any insinuation of an assault" on Judge Salie-Hlophe after Judge Goliath said that she was asked by Judge Salie-Hlophe to take her to hospital following an incident at the judge president's house in Pinelands in 2017.
According to her, Judge Salie-Hlophe's hand appeared to have been injured during an "altercation", resulting in an injury serious enough to require stitches.
"First, what happens between my wife and I at my house is irrelevant to my judicial functions," he argued.
"It is not immediately clear how this has anything to do with gross judicial misconduct that my wife was injured by cutting herself against a glass door."
Judge Hlophe confirmed he had refused to see Judge Goliath when she came to his chambers at the beginning of the new term and had asked her to leave.
According to the deputy judge president's version, Judge Hlophe had "shouted at me in a very aggressive manner, chased me out of his chambers and called me a rubbish and a piece of shit".
Judge Hlophe said he had asked her to stop interfering in his private life and marriage.
'Meddlesome, intrusive and nosy conduct'
"It is this meddlesome, intrusive and nosy conduct by the deputy judge president in my private affairs that has created a climate of distrust and acrimony in our professional relationship. That she has seen it fit to construct a judicial misconduct complaint based on false allegations of my private and marriage life is incompetent."
He charged Judge Goliath had "betrayed me as her judge president by using thwarted and manufactured private information regarding my marriage to undermine me".
Judge Salie-Hlophe, in a statement following the complaint, said Judge Goliath had told her she should drop the Hlophe to her double-barrel surname and should she not choose to leave the judge president, "others will wonder why I am married to an old black man".
Judge Hlophe said the complaint was an abuse of private information obtained in the course of a personal relationship with his wife to "advance her selfish professional interest".
His lawyer, Barnabas Xulu, previously told News24 the Hlophes intended to sue the deputy judge president for defamation.
Judge Hlophe has also lodged a counter-complaint against Judge Goliath.
The JSC said Judge Goliath's complaint would be dealt with by a statuary body chaired by Deputy Chief Justice Raymond Zondo and other senior judges of the superior courts.
On Sunday, Judge Goliath declined to comment, saying the matter was "now in the capable hands of the JSC".
