Sunday Times article by Franny Rabkin
Two “extremely serious” gross misconduct complaints against Western Cape High Court Judge Mushtak Parker have languished unresolved for nearly four years, despite a decision in January 2021 that they should be investigated as potentially impeachable.
Now a judicial conduct tribunal, scheduled to begin tomorrow, may be once again delayed because Parker has asked for a postponement.
Parker, 70, was suspended in October 2020, along with Gauteng Judge Nana Makhubele. But, unlike Makhubele, whose marathon conduct tribunal hearing ended in July, Parker’s is yet to begin. The tribunal “has not commenced due to Judge Parker’s state of health”, said the Judicial Service Commission’s (JSC’s) annual reports at the time.
Parker has not been off work, on full salary, for longer than he was at work (he was appointed in late 2017). He cannot be replaced while he remains a judge, albeit on suspension, leaving the Cape bench, which has been struggling to address backlogs in its rolls, a judge down. His place must be filed by acting judges at additional cost to the fiscus.
Finally, in July, the JSC told the Sunday Times that a hearing had been scheduled to begin in November. The reason for his application to postpone is unclear. Parker’s attorney did not respond to a request for comment but the postponement will be considered tomorrow.
The complaints against him, both involving dishonesty, were considered by the Judicial Conduct Committee (JCC) to be extremely serious. If they were proved to be true, they could “individually and cumulatively”, amount to “gross misconduct” …that would be seen as bringing the judiciary into disrepute”, said the conduct committee.
The first complaint was made by 10 judges of his division, who said he had given “contradictory and mutually exclusive versions” about whether his former judge president, John Hlophe, had assaulted him in his chambers.
Hlophe has since been impeached for a different scandal, but in 2020 the alleged assault was at the centre of a bitter and messy row between him and his then deputy, Patricia Goliath. The row pulled in several of the division’s other judges because of the conflicting versions and because it involved Hlophe’s former wife, judge Gayaat Salie-Hlophe.
The story, disputed by Hlophe, was that he had accused Parker of “want[ing] to screw my wife”, and then assaulted him. According to the 10 judges, Parker had told them (some directly and some heard through others) that Hlophe had assaulted him. “He [Parker] said he was in a very violent manner pushed by judge president Hlophe against a door, which resulted in him having sustained an injury against his back,” said Judge Robert Henney in an affidavit to the JCC.
Judge Derek Wille told the JCC that Parker had come to him after the incident and asked him to take an affidavit down in which Parker recorder the incident. But then, after Goliath referred to the incident in a complaint to the JSC against Hlophe, Hlophe denied the assault. Hlophe said he had shown the portion of his affidavit containing the denial to Parker “and he agrees with this version”.
Parker also wrote to judge Andre le Grange saying “very soon [after the alleged assault] …I realised that events may not have unfolded in the way that I had initially perceived. This is quite understandable, given my emotional state at the time.
The second complaint came from the Cape Bar Council. Before his appointment as a judge, Parker was an attorney at the firm Parker and Khan. In January 2020, the Cape Town office of the Legal Practice Council (LPC) obtained an interdict to stop Parker’s former partners from practicing as attorneys, pending an application to strike them off the attorneys’ roll because they had misappropriated clients’ trust funds.
In court papers, the LPC’s Janine Myburgh said the misappropriation of trust funds by an attorney was “the worst professional sin that an attorney could commit”. The council said this week the strike-off application remained pending.
In its complaint, the Cape Bar Council said Parker was aware of what was happening at his firm and that there was a large deficit in the firm’s trust account, but did not disclose this to the JSC when he was interviewed to be a judge.
The JSC questionnaire specifically asks: “Are there any circumstances, financial or otherwise, known to you which may cause you embarrassment in undertaking the office of a judge?” Parker answered “No”.
The Cape Bar Council also said Parker was obliged to report the large deficit in the firm’s trust account to the Cape Law Society but he did not – in breach of the rules of the society.
When the JCC made its prima facie decision, it had not heard Parker’s side because he did not make written representations or participate in its meeting. It is now the task of the tribunal, chaired by retired Gauteng judge president Bernand Ngoepe, to collect evidence and hold a hearing so it can make findings and a recommendation to the JSC on possible impeachment.
Tomorrow it will decide when that hearing can finally take place.