South Africa

Analysis 

Untenable circumstances: SA judiciary under threat

Untenable circumstances: SA judiciary under threat
John Hlophe. Photo: Elizabeth Sejake

A funny thing happened on the way to the court roll: Papers in strike-off case involving Western Cape judge are suddenly ‘missing’. 

Now that it has been made public that Judge Mushtak Parker is the colleague Western Cape Judge President John Hhlope allegedly assaulted in chambers, there is the not-so-small pressing issue of the missing court papers in another matter involving the alleged misappropriation of R8-million from the trust of a legal firm Parker founded.

Case No 22707/19, an application by the South African Legal Practice Council for the strike-off of a legal firm associated with Judge Mushtak Parker for the alleged misappropriation of around R8-million from the firm’s trust account, was enrolled at the Cape High Court on 25 January and was due to be heard in the troubled division on 21 February.

But one would be extremely hard-pressed to find the voluminous file in Room One of the Western Cape High Court. The matter was not only mysteriously left off the court roll for the 21 February, but the papers too appear to have “gone missing”.

In the meantime, Daily Maverick has reliably learnt that the case has been postponed to late April and that Hlophe, as Judge President, has not deemed it necessary for a judge from another region to hear this serious case, implicating a judge in his division he [Hlophe] is accused of assaulting.

Daily Maverick’s emails to the registrar of the High Court in Cape Town inquiring where the papers might be were met with silence. Phone calls too, to the registrar’s office, were not answered. Journalists who have physically gone to the court in search of the papers have come back empty-handed.

In the Legal Practice Council’s application, Judge Mushtak Parker’s brother, Irfan, a former fellow director of Parker & Khan Inc, reveals that Mushtak Parker had been aware of the shortfall in the firm’s trust account before he had been appointed to the bench in 2017.

Parker did not reveal this to the JSC during his interview for the Bench as he was obliged to do. Had he done so, there is no doubt he would likely not have been appointed.

The sordid saga involving Hlophe, his wife Judge Gayaat Salie-Hlophe, Deputy Judge President Patricia Goliath, Judge Parker and other judges is untenable.

Franny Rabkin, in an analysis of the matter published in the Mail & Guardian on 14 February, publicly revealed that it was Judge Mushtak Parker who had been allegedly assaulted in his chambers by Judge President Hlophe.

In Deputy Judge President Patricia Goliath’s complaint to the Judicial Service Commission, she did not identify Parker as Hlophe’s victim. Goliath filed the complaint in January, alleging several charges of gross misconduct on the part of Judge President John Hlophe.

“The judge concerned drew up an affidavit for the purpose of filing a criminal complaint. However, it appears that Papier J [Taswell] and another judge intervened and persuaded the judge not to proceed with the criminal complaint,” said Goliath in her affidavit.

Parker has not publicly denied that he was Hlophe’s victim. Daily Maverick has since reliably learnt that Parker has “recanted” his allegation, but a prepared affidavit is tucked away somewhere in another judge’s safe.

The situation is untenable because the facts make it so.

Hlophe allegedly assaults Parker. Parker is allegedly encouraged to withdraw the complaint by two other judges. Judge Parker suddenly finds himself a possible focus of the Legal Practice Council’s strike-off application of his former firm to be heard in the Western Cape division. It is Judge Hlophe who will decide which judge in his division will hear the case.

Judge Hlophe and his wife Judge Salie-Hlophe have lodged a counter-complaint against Goliath with the JSC and have denied all allegations as “rumour”.

Responding to Rabkin’s questions, judiciary spokesperson Nathi Mncube said that it was 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.”

Commenting on the assault charges, Mncube said that those were “before the JCC [Judicial Conduct Committee] and we would like to respect the JCC process by allowing them space to do their work.”

Daily Maverick has sent a list of follow-up questions to Mncube and will publish the responses when received. 

Meanwhile, Chief Justice Mogoeng Mogoeng has not entered this latest serious fray which threatens to tarnish the reputation and standing of the entire South African judiciary. 

This is in spite of a statement during a media briefing at his offices in Johannesburg on 3 October 2019 asking for the public to expose corruption in the judiciary.

At the briefing, Mogoeng said:

“As one privileged to be Chief Justice of this great country I am here to reiterate what I have said many times before, that virtually all measures necessary to insulate judges from corruptibility and secure our fierce independence have been put in place and are constitutionally entrenched, all the way into our retirement. Our spouses and partners would also be well looked after past our passing on to another life.”

Considering the snail-on-valium pace the JSC and the JCC has dealt with complaints about the judiciary in the past decade, the South African public too might have to think of finding resolution, perhaps in another lifetime. DM

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