By Paul Ngobeni - Legal Analyst
As evidenced by the Judicial Service Commission’s (JSC) gruelling four hours long interview of the current Acting Judge President, Patricia Goliath of the Western Cape High Court, the JSC sought to deal with pivotal issues of transformation of the judiciary and specifically elimination of racist attitudes in it. But that ambitious task was derailed by the collective cowardice of the Commissioners, especially Chief Justice Maya.
By way of background, around 2020 Judge Goliath filed a misconduct complaint with the JSC against then Judge President Hlophe and his then wife Salie-Hlophe, also a judge on the same court. The latter responded with her own counter-complaint in which she laid bare the following truths about Goliath’s racist attitude. First, SalieHlophe stated “I am keenly aware that Goliath has an unhealthy obsession with my marriage,” she said.“She had expressed to me that I should drop the ‘Hlophe’ to my double-barrel surname, and that should I not choose to exit the marriage ‘others’ will wonder why I am married to ‘an old black man’. She further stated “She serves under this obsessed belief that I am married to my husband for reasons other than those goals shared by spouses within the institution of a sacred marital union.Salie-Hlophe ended her statement with an expose’ on Goliath’s racist attitudes. “It is clearly Goliath’s stance that matters become more serious and ‘sensitive’ depending on the race and class of the parties involved,” she said. “She would openly and comfortably state that during her life people treated her condescendingly but at least she is not a ‘kaffertjie.’, regarding it as an accomplishment.
Suffice it to state that the JSC at some point found that the misconduct complaint against Goliath had sufficient merit to be referred to a Tribunal. Inexplicably, the Complaint was mysteriously made to disappear under the corrupt leadership of the former Chief Justice Zondo. So the current JSC leadership was forced to stay far away from the racism and transformation issues and was reduced to asking nonsensical questions on peripheral issues because Zondo manipulated the JSC complaints process to sanitize Goliath’s outrageous utterances and conduct .
What cannot be denied is that Goliath’s filing of the misconduct complaint against Judge {President Hlophe boomeranged badly against her – she has now been exposed as a racist who referred to Judge President Hlophe as “an old black man”, who objected to an interracial marriage of her colleague and expressed her perverse gratitude that at least she was not a “little kaffertjie.” One would have expected the JSC to seriously interrogate her on these matters and not sweep such weighty constitutional issues under the carpet. The unresolved issues suggest that Goliath must now automatically recuse herself from a whole slew of cases involving black Africans she so passionately hates or despises. It matters not that the usual racists from Democratic Alliance and the Cape Bar Council have not expressed any shock or outrage – the public disclosure of these unbridled acts of bigotry have rendered Goliath uniquely unfit to serve as a Judge President and as a judge for that matter. It would now be unconstitutional for the JSC to allow her to make decisions in cases involving black men or others she contemptuously refers to as little “kaffertjies.” Racist judge Mabel Jansen was forced off the bench for holding similar racist views about black Africans. It would be incongruous for Goliath to be appointed to assume leadership functions in the court as that would further inflict grave harm on the Court.
The supreme law of our land, the Constitution of South Africa, supposedly ensures justice for all and equal protection under the law for all citizens regardless of their race, creed, or national origin. Measures designed to ensure equal protection in the enforcement of the law by the police are necessary in light of the genre of narrative that locates and contextualizes our equal protection jurisprudence. It stands to reason that a Coloured supremacist, once empowered with appointment to a judicial leadership position, has more power to effectuate her racist agenda than he would have as a layperson. Thus, by granting Goliath’s wish to be a Judge President without even a superficial interrogation of these issues the JSC would be indirectly supporting Goliath’s racist agenda and, through Goliath, would be endangering the equal protection rights of all Africans who are subject to our system of justice—or at least hose blacks who would encounter Goliath in her capacity as a judge. This JSC dereliction of duty not only constitutes a failure to protect the African members of the public from the racist agenda of Goliath or any other white supremacist lawyer – it also legitimizes and endorses racist supremacy in the entire system of justice. The JSC is essentially saying that judges do not have to believe in or uphold a fundamental principle of our system of justice, which is that all persons are entitled to equal justice.
What is tragic is that Andre Le Grange, another candidate vying for the Judge President position is no better than Goliath. On or about 11 March 2020 Judge Andre Le Grange informed then Judge President Hlophe in writing that refused to preside over court cases with fellow Judge Mushtak Parker due to what Le Grange called a "prevailing climate of untruthfulness" over an alleged incident involving Judge Parker and then Judge President Hlophe. Le Grange continued: "My decision to recuse myself in matters where I am called upon to preside with Judge Parker was not taken lightly, but after deep reflection and in accordance with my own conscience". He claimed that it is Judge Parker's version that then Judge President "without provocation, intentionally pushed him in his own chambers", but that in the same breath Parker agreed with the version of the Judge President denying that he physically attacked Judge Parker. Le Grange further stated: "It is inconceivable that Judge Parker, with vast experience of criminal law as an attorney, could be mistaken on that issue. Yet, your statement is in total contradiction to what Judge Parker has told me (and many other colleagues) about what transpired in his chambers." Upon information and belief you Judge Le Grange proceeded to publish this highly confidential letter and caused others to publish it at his behest
The Judge President responded to Le Grange’s 11 March 2020 letter in writing. The Judge President correctly pointed out that Le Grange had failed to consult with him with regard to the matters of his recusal from sitting with Judge Parker. He also informed him that he considered his conduct and publication of his letter as unfortunate and inappropriate. The Judge President pointed out that this is unbecoming of a judicial officer, especially when proceedings relating to allegations are pending before the JCC. The Judge President also informed Le Grange that entitled to lodge a complaint against any judge with the JSC and that he was at liberty to do so if hedeemed the complaint to be credible and warranted.
In a letter dated 13 March 2020 Judge Parker responded to Le Grange’s letter calling his decision to recuse himself in matters over which he presides "contrived, purely opportunistic, and perhaps a cynical attempt to influence the proceedings involving the Judge President which are currently before the Judicial Conduct Committee (JCC)". Judge Parkers stated that upon reflection, he had realized the alleged altercation with the Judge President "may not have unfolded in the way that [he] initially perceived". He added further that his “misperception” of what had transpired was “…quite understandable given my emotional state at the time. I therefore came to the firm but inescapable conclusion that a complaint of any nature in this regard, will be both inappropriate and unnecessary." Judge Parker asserted further that he regarded the matter with the Judge President to be personal, private, confidential and fully resolved. He categorically denied that he had told Judge Le Grange or anyone else that he was influenced or persuaded by any of his colleagues to not pursue a complaint against the Judge President, and asserted that Le Grange wants to destroy the Judge President Hlophe at “any cost.” Judge Parker concluded that: "As far as I am concerned, I am satisfied that there is absolutely no basis for a complaint against the Judge President, and [I] request you once again to respect my decision."
Judge Parker describes the highly disturbing conduct by Le Grange. Judge Parker complains of Le Grange “relentlessly pursuing” him to file a complaint against the Judge President “despite [him] having indicated … that I had independently decided not to do so”. Judge Parker said he had “absolutely no complaint whatsoever to lodge against the JP at the JSC/JCC” and that to “comply with your repeated requests will be nonsensical and irregular”. He said that he “categorically deny that I told you or anyone else that I was influenced or persuaded by any of my colleagues not to pursue any perceived complaint against the Judge President”. Even more disconcerting, Judge Parker accused Le Grange of “aggressively barging into my chambers” engaging with him “in a belligerent manner using expletives” and leaving the door “wide open and only closed it after my insistence to do so”. Most alarming, Judge Parker stated that Le Grange appeared “fixated at wanting to destroy the Judge President at any cost, regardless of the consequences, and seemingly for your own ambitions and in this endeavour have no regard for those who you use as a stepping stone”.
It is significant that these allegations against Le Grange are made, not by some blue collar layman but by a judicial officer sworn to uphold the law. It is very concerning that Judge Parker accuses Le Grange of harbouring “your own ambitions and in this endeavour have no regard for those who you use as a stepping stone.” It is significant that he complains that Le Grange relentlessly pursued him to file a judicial misconduct complaint against Judge President Hlophe even when there was no factual and legal basis to do so. He also describes him as emotionally charged and even using expletives to exert pressure on him to file the said complaint he viewed as unwarranted.
All these serious allegations are constitutional issues that touch on bias, judicial independence, integrity and respect for the rule of law and dignity of fellow judicial officers. The JSC failed abjectly in dealing with these matters and allowed Le Grange to give rambling answers on peripheral issues while avoiding the serious matters raised by Judge Parker. There are complaints involving Judge Le Grange that are still pending before the JSC Tribunal. What is worse is that the JSC waived its longstanding rule that judges with pending misconduct complaints cannot be interviewed for promotion until those matters are disposed of. The only African judge against whom. The rule was fully enforced was the late Justice Bosielo. The JSC has now completely revealed itself as a lapdog of the Ramaphosa-led GNU and cannot be trusted to comply with the Constitution.
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