Western Cape Judge President John Hlophe has hit back at Deputy Judge Patricia Goliath's formal complaint about, among other things, his acting judge selections, saying unhappiness over candidates was not grounds for a gross misconduct complaint against him.

Hlophe has filed a counter-complaint of his own against Goliath’s formal affidavit to the Judicial Service Commission (JSC) that questioned some of the recommendations of acting judges in his division.

In her complaint to the JSC filed on January 15, Goliath alleged that the same candidates were repeatedly recommended to act for long periods until being permanently appointed.

READ | Goliath vs Hlophe: Judge President counters deputy's 'shotgun approach' in complaint of his own

Goliath references at least three examples, without mentioning names, one which includes the husband of her former registrar. Another, Goliath claimed, was a friend of Hlophe's wife, Judge Gayaat Salie-Hlophe, while a third was incidentally known to Hlophe.

News24 has reached out to the three judges in question, while Hlophe himself has strongly defended the recommendations and subsequent acting appointments.

In a counter-swipe at Goliath, Hlophe pointed out that even her promotion to her current position four years ago was in itself controversial, with many displeased by her appointment.

He referred to a letter from the Cape Bar which stated that it found her to be the least suitable of three candidates to the position of Deputy Judge President during shortlisting.

"I, however, supported the appointment of the Deputy Judge President despite the fact that there were considerable concerns about her experience to provide judicial leadership, because as my record shows, I wanted to give her a chance to thrive and succeed despite the criticisms," he wrote in response to her complaint against him in an affidavit of his own to the Judicial Service Commission (JSC).

'Her own fiefdom'

One of Goliath’s complaints was the appointment of the husband of her former registrar, who she accuses of micromanaging her and being coached to conduct court business in a manner which excludes her.

Acting Judge Frederick Sievers served for three terms in 2018 and is currently still acting.

Last year, he interviewed for one of the two vacancies in the division, which ultimately went to two other candidates.

After a breakdown in relationship with Hlophe, Goliath had elected to move her chambers, as she claimed she was in effect no longer functioning as the deputy judge president owing to Hlophe’s alleged conduct.

After she moved, her chambers were "incidentally" occupied last term by the registrar’s husband, who she did not name, and who News24 has established was Sievers.

Her registrar also did not move with her, despite previously being advised by Hlophe that registrars were under no circumstances allowed to move away from their appointed judges, Goliath said.

READ | Goliath vs Hlophe: Zondo satisfied complaints could lead to gross misconduct finding

Hlophe countered this by saying Goliath was the one who elected to move, and that the registrar also performed administrative functions that pertained to his work.

"Deputy Judge President Goliath was merely seeking to create her own fiefdom within the division by moving chambers and summoning her registrar according to her whims."

He also hit back at Goliath questioning whether Sievers' long appointment was at the insistence of Hlophe's wife, Judge Gayaat Salie-Hlophe, or even at his own insistence.

It was an allegation without any knowledge of the facts and was "simply intended to devalue the role played by the acting judge", he said.

"This acting judge is a very senior member of the Cape Bar who now holds the status of Senior Counsel. He is an incredibly talented lawyer who has played a tremendous role in helping with judicial work at the court," he said.

"The fact that he is a husband of a registrar is not a disqualifying factor. It is irrelevant to whether he is qualified to act as a judge. It is a scandalous accusation to suggest that there is something constituting gross judicial misconduct for which the JSC must investigate the appointment of this particular acting judge. 

"The appointment was made, on my recommendation, by the Minister of Justice. The registrar who is the acting judge’s wife had nothing at all to do with the appointment of this acting judge. To suggest anything to the contrary is simply malicious."

According to Hlophe, some acting judges have longer availability than others.

"[Long acting periods] are done, for instance, and especially, where the particular judge is black or a woman and has distinguished himself or herself," his response reads.

"It is done to support transformation of the judiciary by giving formerly excluded groups of the practitioners the opportunity to work as acting judges. Many who are now judges found the experience of acting as a judge enriching and rewarding.

"To attack this eminently necessary practice just demonstrates a woefully uninformed appreciation of the challenges facing the judiciary in attracting black and woman candidates for the bench."

Sievers told News24 he would provide a response "if and when it is requested by the JCC".

'No factual basis'

Another acting judge was an attorney from Pietermaritzburg who, "for no apparent reason and at great expense to the state", had been in this position for over a year, Goliath's affidavit reads.

She said it was rumoured that the wife of the judge, who she did not name, had a connection to Hlophe, although she conceded she had been unable to verify it.

Hlophe confirmed in his papers that he knew Acting Judge Matthew Francis, as he had been one of his students.

READ | Hlophe takes on Goliath in scathing response to JSC complaint: 'All the hallmarks of a paranoid judge'

He had also known his wife, who "has been deceased for some time" as she was an academic who took over from him as head of the Labour Department at Natal University law school when he left to lecture at the University of Transkei.

"The acting judge from Pietermaritzburg was lawfully appointed following my recommendation based on his impressive record as a legal practitioner and nothing else. 

"There is no rule against inviting and recommending acting judicial officers from outside the Western Cape Province, and many legal practitioners from outside the province have acted in this division before."

Hlophe, in his affidavit, said Francis’ appointment had not been at great state expense, calling the claim "simply not true".

A letter from the court manager confirmed that the High Court had not incurred any accommodation costs during his stint.

A pool car had initially been allocated to him during his firm term - from January 31 to March 28, 2019 – but he had opted to use his own vehicle after being reappointed.

A total of R21 666 had been spent on three flights to Durban for approved home visits in March, April and August last year.

"It is astonishing for a Deputy Judge President to think that a person adding so much value to our judicial functions should simply be disqualified from his position because the state pays him for the work he does as an acting judge and is from Pietermaritzburg," Hlophe charged.

"The allegation that I have connections with his wife has nothing to do with his appointment to the acting judicial position. It is simply incompetent that recommending the appointment of an attorney from Pietermaritzburg to the position of acting judge is gross judicial misconduct."

Francis told News24 that there was "in essence no factual basis" to Goliath’s complaint.

"That the Judge President knows my wife… I have been divorced for 25 years and my ex-wife died last May. Why that was brought up I don’t know." He said the deputy judge president had never raised her concerns with him before, saying it was "unfortunate and disappointing" that he was being "drawn into this".

'Treacherous, abusive and ill-informed'

In another instance, according to Goliath, Hlophe had re-recommended a friend of Salie-Hlophe to act, despite her informing him that the acting judge had caused some consternation among the older judges.

This as the unnamed acting judge – whom News24 understands to be Judge Brian Hack – had in his student days been implicated in the attempted shooting of Democratic Party MP Colin Eglin, a charge of which he was later acquitted. He was also said to be "extremely conservative".

According to Goliath, "his presence underlines the power which Judge Salie-Hlophe wields".

Unhappiness with an appointment was not evidence of judicial misconduct, Hlophe hit back.

"To trigger a constitutional process of judicial impeachment on this allegation is not only treacherous, it is abusive and ill-informed as it is tarnishing the integrity and image of the judiciary."

He recommended a legal practitioner for acting appointment and the minister in fact appointed the person an acting judge, Hlophe said.

"I have been condemned by the Cape Bar Council, the DA, retired Justice Kriegler and Nadel on the allegation that some older judges in the division do not like that I recommended for appointment a particular acting judge or judges. 

"It appears that the reason why so-called older judges do not like this acting judge is because of his reported political role in the past. Had Deputy Judge President Goliath taken time to examine the political past of numerous judges in our division and elsewhere, she would not condemn this acting judge as she does."

The Constitution did not prohibit the appointment of people who "played different or opposing political roles from the past", Hlophe’s affidavit reads.

"Former members of political parties are members of the judiciary. The complaint is not that the particular acting judge is incompetent or is a racist or that he suffers from any disqualifying factor. No, the complaint is that 'older judges' did not like the appointment. 

"It is self-evidently unmeritorious. It does not support the primary allegation that Justice Salie-Hlophe plays any role in the appointment of acting judges. The fact that the acting judge might be a friend of Justice Salie-Hlophe is not evidence that she plays any role in the appointment of acting judges. It is also not evidence that I am guilty of gross judicial misconduct."

Acquitted

In response to complaints, Hack wrote to the Judge President confirming that he had been involved in student politics as part of the Conservative Student Alliance, a name he had chosen as he felt it was "an appropriate term in the context of the University of Cape Town".

"I did not anticipate that the label would follow me for 40 years. I am not a conservative. Anyone who knows me, whether socially or professionally in my capacity as an advocate or an acting judge, will confirm this."

In the Eglin case, he was tried and acquitted, he said.

Hack confirmed that he and Salie-Hlophe were friends, a fact he said was common knowledge in the legal fraternity, and that he had been invited to the Hlophe wedding.

He had considered acting about five years ago after the Bar Council circulated a request form the Judge President that members consider making themselves available to serve as acting judges.

The Judge President had directly asked Hack in 2015 when he appeared before him in court, but he had told him he was concerned about the impact on his practice, his letter read.

He was told to consider it, and later informed the Judge President he was available if required.

He said he had not requested Salie-Hlophe for assistance.

Hack declined to comment when contacted by News24.

Deputy Chief Justice Raymond Zondo this week referred both complaints to the Judicial Conduct Committee (JCC), having been satisfied that, if established, they would be likely lead to a guilty finding for gross misconduct.

The JCC will meet on February 21 to consider the merits of both complaints, and whether to recommend a tribunal.