Real Court Drama Unfolds

By Pinky Khoabane

The waters are muddied in the battle between Western Cape Judge President and His Deputy

Chief Justice Mogoeng Mogoeng on the issue of corruption in judiciary
Chief Justice Mogoeng Mogoeng also involved in the Hlophe/ Goliath saga

The right to truth and justice and the fight for a fair trial are battles playing out in the rarefied corridors of The Western Cape Division of the High Court where a messy judicial infighting – amid allegations of gross misconduct, double-standards in morality, lies, racism, sexual harassment and rape allegations – threatens to unleash a constitutional dilemma.

It’s a battle between the judge president and his deputy, and a group of twelve largely white judges, some of whose past leaves much to be desired. Caught in the crossfire are the judge president’s wife who is incidentally a judge in the same division, the judge president’s lawyer, and the chief justice. And the public cannot be left unscathed in the process.

There are serious questions that arise. Who guards the guardians when judges judge judges? When a case is so embedded in the politics of the day and judges themselves are part of it, who mediates and dispenses justice?

In any constitutional democracy, the judiciary will be the ultimate guarantor of the rule of law and the supremacy of the Constitution. Judges must act independently and impartially (as prescribed in section 165 of South Africa’s Constitution) in their role to dispense justice.

 In the battle between Judge President John Hlophe and Deputy Judge President Patricia Goliath, the waters are so muddied that the Western Cape Division of the High Court is divided almost in half, with twelve judges in the Division publicly taking Goliath’s side.

What are seemingly years of simmering tensions in the Division have cracked wide open, triggered by a 14-page complaint by Goliath to the Judicial Services Commission (JSC) in January 2020 in which she accused Hlophe of gross misconduct, nepotism and assaulting a judge in chambers. She also accused his wife, Judge Gayaat Salie-Hlophe of wielding immense powers in the Division.

The Hlophes hit back denying all allegations and lodged their own complaints against Goliath. And so what we have are counter complaints lodged with the JSC – between Goliath and Hlophe on one hand, and Goliath-Sallie-Hlophe, on the other. Both matters are now before the Judicial Conduct Committee (JCC), which has decided that the judges will face an inquiry in terms of section 17 of the JSC Act. But from that emerge issues of sexual harassment and racism, which has long dogged the Western Cape Bar. The altercation between Hlophe and Parker stems from accusations that Parker sexually harassed Salie-Parker and yet this matter has not come to be part of the grave issues to be discussed. She has also accused Goliath of racism. 

In the process, Hlophe’s lawyer, Barnabas Xulu, who has a matter in the Western Cape High Court, finds himself pitted against Judge Owen Rogers, one of the judges who is a witness in Hlophe’s alleged assault case on Judge Mushtak Parker a year ago.

Rogers is among the group of judges who have lodged a complaint against Parker in which among others, they accuse him (Parker) and Hlophe of effectively lying about the assault on Parker. Both have denied these allegations but the 12 judges who have come together against Parker and Hlophe rely on a sworn statement by Parker that Hlophe assaulted him in chambers, and confirmation of the incident by Parker to other judges months later.

 That these judges did nothing about this matter until a year later is a question of much intrigue and has not been satisfactorily answered and will hopefully be scrutinised in the inquiry being investigated by the Judicial Conduct Committee (JCC).

 Xulu has to defend his client against these allegations but his firm Barnabas Xulu Incorporated (BXI) also has a matter brought by the Department of Agriculture, Fisheries and Forestry (DAFF) in the Western Cape High Court. This stems from an unopposed matter involving a settlement agreement between the Department, for work performed and for which the company had not been paid for over a year. Not trusting that his firm would be paid, Xulu wanted the settlement agreement to be made a court order. This was agreed upon by all parties concerned.

 The settlement agreement was ordered in July last year but was overturned by Rogers on 30 January 2020 – 15 days after Goliath lodged her complaint.

To make Xulu’s case even more complex is the fact that Goliath had been the one to hear this unopposed case last April. By then the allegations of assault on Parker were already circulating.

She wanted supplementary evidence that the agreement had been duly concluded, and required confirmation from National Treasury, the state attorney, the National Director of Public Prosecutions, minister and director-general.

After a month of the back-and-forth orders by Goliath, BXI complained to Hlophe that Goliath’s “requirements went beyond what is reasonable”. She then informed BXI she would no longer be dealing with the case in view of the complaints.

The matter was then handed over to Judge Steyn who on 6 June 2019 issued the by consent order confirming the service level agreement reached and payment thereof. A writ of execution was issued and the sheriff was able attach just over R20m from the DAFF’s bank accounts which was paid to BXI.

However, the department, which became the new Department of Environmental Affairs, Forestry and Fisheries following the 2019 general elections, launched an urgent application in August to set aside the service level agreement it had entered with BXI. Rogers ordered among others, that BXI to repay the R20m.

 In response, BXI has lodged an application to rescind the Rogers’ judgment on the grounds of fraud, misrepresentation, failure to disclose material facts and non-disclosure of complete record”.  He adds in his application that: “This contention is based on the facts set out in the affidavit deposed to by Siphokazi Ndudane on 12 March 2020 in support of her application for leave to intervene in these proceedings”.

 Ndudane is the former Deputy Director-General of DAFF. She worked closely with BXI and knows how it came to be appointed including details of the undertaking by the DAFF’s Director General Mzamo Michael Mlengana to pay BXI. In her application, she asserts that her rights were violated when Rogers in the January 30, 2020 judgment, made “far-reaching findings against me even when I was not a party to the case. I was therefore not heard by the court when it made its findings against me, with the consequences that my constitutional rights were greatly prejudiced.”

Ndudane only discovered the implications of the ruling when her new employer, the Department of Rural Development and Agrarian Reform in the Eastern Cape withdrew an offer of employment.

Central to her argument is that Rogers’s judgment is based on the one-sided version of events surrounding the contract with BXI, which she says is false, and she goes into details to debunk the DAFF’s version of events.

What we now have is this complex situation where twelve judges in the Western Cape including Rogers are witnesses in the Goliath/Hlophe cases. But it isn’t just these judges who will also have to come before the JCC – if its mission is to seek truth and dispense fairness. Chief Justice Mogoeng Mogoeng, it has emerged met Goliath who told him about the alleged Parker assault and her tense working relationship with Hlophe. What else did she tell him? Did she record him secretly as she did Hlophe during a meeting in October 2019?

On 15 May 2020, Mogoeng as the chairperson of the JCC referred two complaints against Parker to the JCC. He’s quoted as saying if the complaints were to be established they would likely lead to a finding of gross misconduct. Given that Mogoeng met Goliath where they discussed the Parker matter among others, makes him a witness to the Goliath/Hlophe matter. Does his getting involved in the matter not create a conflict of interest?

With the cancelation of many of the high-profile entertainment events that take place at this time of the year due to covid-19, all eyes will no doubt be on what pans out in the Western Cape Division of the High Court, which has come to beat many a soap-opera in entertainment value – sadly this involves real people and people’s lives in the quest for justice. 

Article first published in Sunday Independent 

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