Strike-off case pulls in judge

NEWS ANALYSIS

An application to strike a Western Cape firm of attorneys off the roll has pulled in one of the province’s judges. The case, still to be heard, comes at a time when the Western Cape high court already teeters on the edge of crisis after the explosive complaint and counter-complaint between the division’s judge president and his deputy.

At first glance, the case looks like an ordinary striking-off application: a small Cape Town firm, Parker & Khan Inc, at which Abdurahman Khan and Irfan Parker are partners, got into some financial trouble and ended up dipping into clients’ trust funds to make up the shortfall when other clients needed to be paid.

It is a perfectly run-of-the-mill application except that — just before the wheels started coming off at the firm — the third member of their partnership at the time, Mushtak Parker, was appointed as a judge.

And, in court papers before the very same court at which he sits as judge, it has been alleged by his brother, Irfan Parker, that the shortfall happened “prior to [him] accepting the appointment to the Bench” — and also that the judge knew about the shortfall at the firm.

Instead of reporting this to the Legal Practice Council as they were supposed to do, WhatsApp messages between the three partners attached to the court papers show the three desperately trying to find the funds to make up the shortfall.

Parker also failed to disclose the shortfall in his questionnaire to the Judicial Service Commission (JSC)when he applied to be a judge. In the section in which candidates are asked whether there are any circumstances “financial or otherwise” that may cause embarrassment in undertaking the office of a judge, Parker ticked “no”. He also ticked “no” to the question about whether there was any other “relevant matter” that he thought should be brought to the commission’s attention.

Parker is also one of the judges caught up in the quagmire of allegations and counter-allegations between the Western Cape Judge President John Hlophe, and his deputy, Patricia Goliath. Three sources have confirmed to the Mail & Guardian that Parker is the junior colleague who Hlophe is alleged by Goliath to have assaulted.

In her complaint to the JSC, Goliath claims that Hlophe physically assaulted a junior judge in chambers. She does not name the judge, but says that the judge had been on the verge of laying a criminal complaint against Hlophe. But, after the intervention of two other colleagues, he decided not to.

Hlophe, who also did not name the judge, had a different version: he said they did have a dispute, but that there was no assault. It was a private matter unrelated to judicial work and, after mediation, they have put it behind them and remained good friends.

With two conflicting versions by Goliath and Hlophe, Parker will be a crucial witness should the JSC decide to hold a judicial conduct tribunal into the complaints, and his evidence could sink the judge president or the deputy judge president — depending on which way it goes. This week the JSC’s judicial conduct committee said it would be meeting on February 21 to consider whether the complaints would, if established, amount to impeachable conduct.

The complaints by Goliath and Hlophe — both of which have dragged in a number of other judges of the division — have rocked the Western Cape high court. The province’s Bar has already called on the chief justice to intervene — for the sake of “public confidence in the judiciary and the proper functioning of the division”. The judges of that Bench also took the unprecedented step of making a public statement to assure the public that they will “continue to adjudicate cases allocated to us fearlessly and with absolute impartiality”.

With one of the biggest political cases of the year — the public protector’s attack on Parliament’s impeachment rules — coming up in the Western Cape, questions about the integrity of any of the other judges of the division is the last thing it needs.

In January, the Cape Town office of the Legal Practice Council obtained an interdict to stop Khan and Irfan Parker from acting as attorneys, pending an application to strike them off the roll.

In court papers, the council’s Janine Myburgh said the application was made because “Kahn and/or Parker may have misappropriated funds held in trust on behalf of some of their clients and it is apparent that they have maladministered trust funds”.

“Misappropriation of trust funds by an attorney is the worst professional sin that an attorney could commit,” Myburgh said.

Detailing how in some matters, money had been “rolled” from one client’s trust account to pay what was due to other clients, Myburgh said: “One is not dealing here with trust deficits arising from simple accounting errors. There appears to be a continuous pattern of concealing trust deficits … which demonstrates an element of deceit, inimical to the honour associated with the profession of an attorney. The attorneys’ profession demands of its members complete honesty, reliability and integrity.”

Under the Legal Practice Act and its forerunner, the Attorneys Act, it is unlawful to dip into one client’s trust account to pay another or to pay the firm’s creditors or operating expenses. There is also a duty on attorneys to report each other to the Legal Practice Council if there is misappropriation or maladministration of trust funds.

Myburgh’s affidavit cites incidents in which money paid out by the Road Accident Fund had not been handed over to the firm’s clients, the intended beneficiaries. However it is unclear whether any of the misappropriated money ended up in the pockets of any of the directors.

In response to questions, the Legal Practice Council said “misappropriation” includes theft of trust money but applies more broadly to include “unauthorised use of funds entrusted to a legal practitioner/law firm during the ordinary course of practice and would include theft of the funds”. In the court papers Kahn, although contrite about moving the trust monies around, specifically denied that any of it ended up in his or his partners’ pockets.

It is also important to note that the relevant time period covered by the Legal Practice Council’s application starts in 2017. By October 2016 Mushtak Parker had already begun to act as a judge — “and effectively withdrew from the practice”, said Myburgh. In November 2017, he was permanently appointed as a judge.

However, Myburgh says in her affidavit that, as at March 2017, the firm’s trust account already had a shortfall of R5.9-million.

In an answering affidavit, Irfan Parker says he was not involved in causing the shortfall and blames everything on Khan, but also says he had raised the shortfall with the other two “directly and in person until Mushtak left the firm, and thereafter, during the latter part of 2016, by way of WhatsApp communications”. He attaches WhatsApp messages to show how he tried to prompt the three to attend to the matter, but he “received very little cooperation from Mushtak and Khan”. 

“I placed my trust in my co-directors, one of whom is my elder brother. I submit I was entitled to do so,” said Irfan Parker.

According to Irfan Parker, on July 4 2018, Mushtak wrote: “Aslm [As-Salaam-u-Alaikum] let it be known that the failure of the meeting was not for lack of endeavour on my part. On Friday I tried to set up the meeting but was told by Abe that the issue does not concern me and that the two of you will have to sort it out. Needless to say things, seemed to not only not get sorted out but seemingly got worse”.

Then on September 6 last year, in response to further entreaties from Irfan, Mushtak Parker wrote: “Aslm [As-Salaam-u-Alaikum] herewith my meaningful response. I HAVE tried very hard to come to the party which I by implication allegedly contributed to.”

Irfan Parker’s attorneys also wrote Mushtak on January 9 this year to warn him — “as a matter of courtesy” — that court papers would reveal that there was a shortfall “prior to you accepting appointment to the Bench”. The letter puts the amount at R3.2-million.

The letter says: “The answering affidavit will, unfortunately, make reference to the fact that you were aware of the shortfall”.

Parker did not respond to a request for comment from the M&G. Khan also declined to comment, saying that the matter was before the court and the firm may release a statement shortly.

The Legal Practice Council also declined to comment on whether Mushtak Parker would have been the third respondent if he had still been an attorney. In her affidavit, Myburgh says that even if Irfan Parker did not know about the shortfall, this was “no defence”.

“The duty to comply with the provisions of the previous Attorneys Act and the current Legal Practice Act, as well as the code of conduct is imposed on every practising attorney, whether practising in partnership or not.”

If Myburgh’s statement applies to Irfan, then by parity of reasoning, it should apply to Mushtak also.

When a judge is sued, the normal practice is that a judge from another Bench is brought in to hear the case — to insulate judges from perceptions of bias. In this case, Mushtak Parker is not being sued, but his being implicated in the case could give rise to the same concerns.

The judiciary’s spokesperson, Nathi Mncube, said: “It is the prerogative of Hlophe JP to make a decision whether to appoint a judge from another division or not. In view of the fact that Judge Parker is not cited in the pending application, there is no apparent basis in law for him to do so.”

He said as regards “the matter of the alleged assault on a judge, those allegations are before the JCC [Judicial Conduct Committee] and we would like to respect the JCC process by allowing them space to do their work.”