Western Cape judges refuse to share a bench with one of their own

Ten more judges of the Western Cape high court have refused to sit with Judge Mushtak Parker because of his “apparent and serious lack of integrity”. 

In a letter to Judge President John Hlophe on Monday, the 10 judges said Parker had given “materially inconsistent accounts” of what had happened in an altercation between Parker and Hlophe in February last year, in one version saying Hlophe assaulted him and in another not.

The alleged assault is one of a number of allegations contained in an explosive gross misconduct complaint made by Hlophe’s deputy, Patricia Goliath, to the Judicial Service Commission (JSC). In his response, Hlophe denied that there was any assault and said that he had showed this part of his affidavit to Parker, who agreed with his version. 

But Parker had told a number of colleagues something very different, said the 10 judges in their letter. First, immediately after the alleged assault, Parker had gone to Judge Derek Wille and asked him to take down an affidavit — for the purposes of a criminal complaint. 

He also told Judge Andre Le Grange “substantially the same” version as was in the affidavit. And told other colleagues substantially the same thing, they said. 

But in Hlophe’s affidavit to the JSC, Hlophe denied that he had assaulted Parker and gave “a description of the events in his chambers which is materially at odds with the one Parker J gave under oath,” said the 10 judges.

Le Grange was the first judge who told Hlophe, in a letter last week, that he would not sit with Parker. 

Responding to this, Parker explained the difference in versions of what happened in his argument with Hlophe by saying that, “having reflected” after their argument, he realised that “events had not unfolded in the way I had initially perceived”. He said he came to this realisation “very soon thereafter”.

Conflicting accounts

But this explanation was even more concerning to his colleagues, they said. This was because, although the alleged assault happened in February 2019, during the second and third quarter of the year and as late January this year, he was saying something different to colleagues, they said. 

“On any reckoning, these various accounts were given long after the expiry of what could be described as a date ‘very soon’ after the alleged assault,” they said.  

“We do not know from personal knowledge what happened between you and Parker J in his chambers. What we do know is that Parker J has given materially inconsistent accounts of the incident. We know, also, that his recent allegation that ‘very soon’ after the alleged assault, he came to realise the events may not have unfolded in the way he had perceived is diametrically at odds with what he told other colleagues many months after the incident.”

The judges said this “apparent lack of integrity on Parker J’s part is irreconcilable with the judicial function … That being the case, we are not willing to sit with Parker J for the time being.”

“If any of us were to sit with him, the court so constituted would inevitably be tainted, and we would individually be put in a false position,” they said.

The letter is signed by judges Siraj Desai, Dennis Davis, Shehnaz Meer, Lee Bozalek, Ashley Binns-Ward, Elize Steyn, Patrick Gamble, Robert Henney, Owen Rogers and Mark Sher.

The complaint against Hlophe, and his counter-complaint against Goliath, are currently before the JSC’s judicial conduct committee. It met more than two weeks ago to consider the complaints and to decide whether to refer them to JSC and recommend a judicial conduct tribunal that would look into potentially impeachable conduct. It has yet to announce its decision and the JSC must then still decide whether to ask the chief justice to establish a tribunal.

Only once this decision has been taken by the JSC can either of them be suspended. In the meantime, they continue to lead a division that is increasingly divided by their complaints. 

Ten Western Cape Judges Letter to Hlophe JP by Mail and Guardian on Scribd

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian
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