OPINION: Hlophe vs Mogoeng highlights problems with the system for holding judges to account

On 24 October, the Judicial Conduct Committee (JCC), consisting of Chief Justice Maya (listed as Deputy Chief Justice at the time the complaint was handled) and Justices Shongwe and Saldulker, handed down a decision upholding a complaint by former Western Cape Judge President – since removed from office and now a member of the MK political party – against former Chief Justice Mogoeng Mogoeng.

In essence, the complaint is that while he was Chief Justice, Justice Mogoeng met with Western Cape Deputy Judge President Patricia Goliath, and then in his role as chair of the JCC, presided over a complaint and counter-complaint between Hlophe and Goliath.

It is further alleged that Mogoeng and Goliath agreed that Judge Mushtak Parker should be persuaded to lodge a complaint against Hlophe. (Judge Parker, incidentally, was also referred to a conduct tribunal over allegations that he gave conflicting versions as to whether he was assaulted by then-Judge President Hlophe – the incident which featured in the alleged engagement between Mogoeng and Goliath).

We should not get too far ahead of ourselves about the outcome. The Judicial Service Commission (JSC) may yet reject the JCC’s recommendation and decline to recommend the establishment of a conduct tribunal.

Even if a tribunal is established, the veracity of the allegations will only then be tested. If, as Justice Mogoeng asserted in response to the complaint, there is no evidence to support the complaint, it is sure to be dismissed.

Even if a tribunal does find against the former Chief Justice, it is quite conceivable that the finding could be of lesser misconduct not justifying removal from office.

Nevertheless, the complaint and its surrounding context are remarkable for at least three reasons.

First, it involves a complaint by a former judge who has himself been removed from office against a former Chief Justice who has retired from active service – an unprecedented scenario.

Were it to be found that Justice Mogoeng was indeed guilty of gross misconduct, he could be removed from judicial office and thereby lose the benefits due to a retired judge, as happened with former judge Nkola Motata.

It should be noted that while he was still Chief Justice, Mogoeng was ordered to apologise for comments he had made on South Africa’s foreign policy towards Israel. A further finding of misconduct against such a senior judge, even if it is not sufficiently serious for him to be removed from office, would be damaging to the judiciary and to Mogoeng personally.

Second, the issue has its genesis in an underlying complaint and counter-complaint that were initially instituted at the beginning of 2020. How the matter was dealt with, as we have seen, gave rise to Hlophe’s complaint against Mogoeng.

In December 2023, the JSC accepted the JCC’s recommendation that Judge Goliath’s complaint against Hlophe be referred to a conduct tribunal but found that the counter-complaint against Judge Goliath did not amount to gross misconduct, and did not adopt the recommendation to refer the counter-complaint to a tribunal.

Additionally, as we have seen, a complaint against Judge Parker was also referred to a tribunal.

The JCC’s decision has created an anomalous situation where judge Goliath’s complaint is in stasis due to Hlophe’s removal from the bench, and judge Parker’s tribunal is yet to proceed – and yet, the Hlophe complaint against Mogoeng may proceed.

The whole tangled story reinforces the picture, which emerged so starkly during the JSC interviews earlier this month, of “deep divisions” at the Western Cape High Court.

This does little to help public confidence in the judiciary.

Third, there is the curious question of the role of the current Chief Justice in the process of dealing with Hlophe’s complaint. Chief Justice Maya has previously recused herself from deciding complaints against Hlophe. When the complaint against Hlophe which led to his being removed from judicial office was considered by the JSC, Maya recused herself.

During interviews by the JSC, the Chief Justice has compared Hlophe to a “big brother”, and in her 2022 interview for Chief Justice, explained that while she was a judge at the Supreme Court of Appeal, she had indicated that due to her acquaintance with Hlophe, she “would really be uncomfortable sitting in judgment of any of his matters” and accordingly “always avoided anything to do with him”.

Indeed, Maya’s absence from the JSC when it considered the impeachment complaint against Hlophe was one of the grounds used by Hlophe (unsuccessfully) to challenge the process which led to his removal as a judge.

It is hard to see how these explanations can be reconciled with the Chief Justice’s decision to sit on the JCC in respect of Hlophe’s complaint against Justice Mogoeng. No explanation is provided in the JCC decision, and it is hard to conceive of a reason why this complaint would not raise the concerns that the Chief Justice identified as previously justifying her recusal from any matters involving Hlophe.

This is problematic both for perceptions of the process, and because it may provide grounds for Justice Mogoeng to challenge the JCC’s decision.

The Chief Justice should clarify this apparent inconsistency, to protect her standing and the integrity of the complaints process.

The big takeaway from this incident, looking beyond the personalities involved, is what it says about the process of dealing with complaints against judges.

In a report examining the performance of the JSC between 2009 – 2022, Freedom Under Law describes the JSC’s approach to dealing with serious complaints against judges as being characterised by delay and questionable decision-making.

It has also been pointed out that problems with the system of dealing with complaints have “serious implications for public confidence in the judiciary, and for the rule of law and constitutional democracy.”

This danger is starkly demonstrated by this complaint. Although lodged while he was still a judge, Hlophe is now a member of a political party which has expressly called for the Constitution to be repealed, and it does not take any great imagination to see how the complaint may be weaponised as a means to attack and undermine the judiciary.

In this context, it is crucial that the system of dealing with complaints against judges strikes a delicate balance. On the one hand, it must ensure that when judges do commit misconduct, they are properly held to account. On the other hand, it is important that the system is robust enough to prevent it from being weaponised to settle scores against judges and undermine the judiciary.

Unfortunately, the way the complaint against Justice Mogoeng has been dealt with has not served the judiciary well.

The time taken to resolve the issue, the seemingly contradictory outcomes in respect of different but inter-related complaints, and the inconsistent approach to the Chief Justice’s recusal do not assist in building public confidence in the process.

Indeed, the episode further highlights the need for systematic reform in how we deal with complaints against judges.