Judge Goliath defends WC high court and herself amid criticism at JSC sitting.

By Emsie Ferreira.

Fault lines in the Western Cape high court were on full view at the Judicial Service Commission (JSC) on Monday when Acting Judge President Patricia Goliath was interviewed for the vacancy created by the impeachment of John Hlophe.

Chief Justice Mandisa Maya asked Goliath to speak to concern that the division is “notoriously troubled” and to tell the commission what she would do to right it, if promoted to the post.

Goliath resisted the notion that this remained the case. Instead she sought to cast the strife as emanating from Hlophe’s two decades as head of the division and now belonging to the past. 

“There is nothing unique in the challenges this division faces,” she said at one point, adding that it is not true that there is an atmosphere of mistrust. At another, she insisted: “The division is not in disarray. The waters are calm.”

Goliath spoke of measures she had taken to improve collegiality at the court, noting that the tea room “did not exist” and she restored the tradition of meeting in a common room. She added that she had an open door policy, and that any judge was free to see her at 9.30am, without prior appointment.

When pressed again by Maya about what she would do if appointed, Goliath said she viewed the interview as an opportunity not to speak of what she would do but “what I have done”. 

Commissioners were not persuaded by Goliath’s assurances. 

Goliath’s difficulty stemmed in part from a submission the commission received from a fellow Western Cape high court judge, Rosheni Allie, who described the measures she had introduced as “ruinous to the running of the court”, Maya said.

“How are things there really? And what do you have in mind to put them right if these accounts are true?” the chief justice asked.

Goliath replied: “That is not a correct statement to make.”

She noted that she has been running the division for close to two years since Hlophe was suspended by President Cyril Ramaphosa in late 2022, pending the finalisation of the complaint of gross misconduct he faced. 

“When I stepped into that position of acting judge president, the division was in a dire state. There were no judges’ meetings held for a period of six years, the tea room was non-existent, the morale of the judges was low.”

She said she immediately took steps to restore harmony, including calling judges’ meetings where all were free to air their views.

“I have worked very hard and I have put measures in place to make the environment conducive for service delivery and I believe that I did that to the best of my ability. There has never been any bad publicity about the Western Cape high court in the almost two years that I have been leading that division,” Goliath said.

She added that Allie’s objection to the manner in which she allocated expedited matters —  namely that it affected colleagues who were dealing with urgent and semi-urgent matters —  were unfounded.

“That statement is entirely untrue … there is no connection between the two.”

Maya noted that there were further concerns, including that no minutes were taken at judges’ meetings and that the importance of the continuous roll has been compromised, hampering the workflow at the court. 

Worryingly, she added, the Allie document also suggested that Goliath did not ask her fellow judges for input for heads of courts meetings and did not give feedback on decisions taken in this forum.

“The general impression one gets from this submission [is] that the judges there do not have a voice really. You impose your views and decisions on them. You don’t consult.”

Goliath replied: “I am most certainly not the dictator … any judge can come and raise any issue with me.”

Maya asked Goliath whether, beyond the steps she said she had taken to improve the running of the court, she believed there was still room for improvement and how she would bring that about if appointed judge president.

“Chief Justice and honourable commissioners, I am not here today to only talk about what I can do for the division, I am here to talk about what I have already done, “Goliath said. 

“I have a track record.”

Commissioner Sesi Baloyi, the senior advocate who serves as the spokesperson for the JSC, said she was disappointed at Goliath’s reluctance to engage substantively with the issue Allie raised, adding that she seemed defensive.

“I am quite disappointed by the tone and the manner of your response.”

Maya did not allow questions about the complaint and counter-complaint Goliath and Hlophe filed against each other in 2020.

Goliath had filed a complaint of gross misconduct in January 2020, claiming Hlophe had sidelined her, assaulted a colleague, allocated a case on a nuclear agreement to judges sympathetic to the Zuma administration and had called her “rubbish” and chased her out of his chambers.

Hlophe largely denied the allegations and filed a counter-complaint of racism against Goliath, and said that by seeking his removal on false grounds she had made herself guilty of impeachable conduct. He further alleged that she was incompetent, had spread lies about him and sought to meddle in his marriage to a fellow judge in the division, Gayaat Salie-Hlophe.

“Nah, we are not going to go there. Some of these matters are still subject to adjudication by the judicial conduct committee and perhaps the judicial conduct tribunal, “she said when Judge Patrick Gamble referred to the matter.

Goliath said she regarded it as “an issue between two people”, but added that she was exonerated on his counter-complaint.

She faced serious criticism from commissioners for her ruling in Standard Bank of South Africa Ltd v Swartz and Others

It was overturned by the supreme court of appeal earlier this year, with that court noting: “If the errors and their consequences were not so serious, this appeal could be said to arise from a comedy of errors.”

Commissioner Carol Steinberg stressed that being overturned on appeal was par for the course and not a reason for high court judges to “be afraid to come here” to contend for promotion.

But she said what transpired in this matter was of a different order.

“It is not a run of the mill overturning on appeal. The court says you made two fundamental errors.

“You granted an order where there was no application — it was a non-existent application and you granted an order. And at the same time, you ignored an existing order of court. Those are primary and fundamental errors. They are not arguable points.”

Goliath said she accepted the criticism. 

“I have noted the comments and I accept that I erred in that regard.”

It emerged late in the interview, which ran for more than three hours, that Goliath had asked Western Cape Judge Nathan Erasmus to recuse himself from representing the division at the JSC on Monday because of his friendship with one of the other candidates. The same was not true of Judge Gamble, she said.

Maya questioned this stance, saying it was routine for commissioners to declare their relationship with a particular candidate, without the need for recusal. Economic Freedom Fighters (EFF) leader Julius Malema invited her to concede that she was wrong.

Goliath replied that she had exercised her constitutional prerogative.

Watch Live in the video below:

Video Courtesy of JRSA.

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