Cape Town - Questions have been asked about the ability of Cape judges to deliver sound judgements after a lengthy letter signed by 10 judges exposed divisions within the Cape Bench.
In the letter, dated Monday, March 16, and addressed to Western Cape Judge President John Hlophe, the judges accuse their colleague, Judge Mushtak Parker, of “an apparent and serious lack of integrity”.
The judges wrote: “If any of us were to sit with him, the court so constituted would inevitably be tainted and we would inevitably be placed in a false position, since we would purport to be dispensing justice as members of a court characterised by honesty and integrity.”
The chairperson of the General Council of the Bar of South Africa (GCBSA), Craig Watt-Pringle, said: “The fundamental problem here is you’ve got an unseemly stand-off in the division and the 10 judges are raising the issue as a matter of concern.”
“Ordinarily the judge president, or in his absence, the deputy judge president, should provide guidance but the judge president is in the thick of the issue, while the deputy judge president, while not directly involved, is embroiled in issues with the judge president and so it is impossible for her to provide leadership,” said Watt-Pringle.
Watt-Pringle said: “It is an unhappy situation and cannot inspire confidence in the Bench I understand these matters take time to resolve, but the court is in need of leadership. I am looking to the chief justice to provide a lead as the leadership of the Western Cape Division is completely compromised. One way or another, the buck stops with him.”
The letter by the judges, who make up about a third of the Western Cape High Court’s complement of 34 full-time judges, is related to an investigation by the Judicial Service Commission (JSC) Conduct Committee of a high-profile complaint brought by Deputy Judge President Patricia Goliath against Judge President Hlophe and his wife, Judge Gayaat Salie-Hlophe, amid allegations of misconduct against both. Judge Parker is believed to be the judge referred to by Judge Goliath in her judicial complaint about Judge Hlophe.
During this investigation, it emerged that Judge Parker had in February last year accused Judge Hlophe of assaulting him, only to later change his story. Judge Parker wrote a letter to Judge Andre le Grange in which he said: “Having reflected on the narrative with regard to the alleged assault, very soon thereafter and without anyone having influenced me in any way whatsoever, I realised that events may not have unfolded in the way I had initially perceived.”
Meanwhile, the Judicial Conduct Committee has decided by majority of two to one that the complaints lodged by Judge Goliath against Judge Hlophe, and Hlophe against Goliath should be referred to the chairperson for an inquiry to be conducted.
The statement said: “Such an inquiry need not necessarily be a formal inquiry but may be a formal inquiry if the chairperson or member of the committee designated to conduct it decides that it should be formal. An inquiry conducted in terms of Section 17 is required to be inquisitorial in nature and there is no onus on any person to prove or disprove any allegation of fact.”
On the question of whether he would place Judge Hlophe and Judge Goliath on leave, Chief Justice Mogoeng Mogoeng said: “I don’t have the power to grant leave. So to suggest that the chief justice should have placed the judges on leave is disingenuous.”
The power to suspend judges rests with the president, and only after a recommendation by the Judicial Service Commission.
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