The judges have also forwarded their letter to Chief Justice Mogoeng Mogoeng as well as the secretariat of the Judicial Service Commission (JSC) so that it may be placed before the Judicial Conduct Committee (JCC).

The judges who signed the letter dated 16 March 2020 are: 

• Siraj Desai,
• Dennis Davis,
• Yasmin Meer,
• Leonard Bozalek,
• Ashley Binns-Ward,
• Elize Steyn,
• Pat Gamble,
• Robert Henney,
• Owen Rogers and
• Mark Sher.

The JCC is currently still “considering” a 14-page complaint lodged by Deputy Judge President Patricia Goliath in January 2020, alleging gross misconduct on the part of Hlophe. In her complaint, Goliath accused Hlophe of trying to rig the bench as well as assaulting Mushtak Parker in his chambers in February 2019.

It is this alleged assault by Hlophe – which Parker has since denied in spite of an existing affidavit to the contrary, sworn before a commissioner of oaths and kept safe by fellow judge Derek Wille – that has stirred the hornets’ nest.

On 11 March Judge Andre le Grange was the first to break ranks. In a letter to Hlophe, Le Grange said that his objection to sitting with Parker  “is based on a deep moral and ethical concern for the judiciary”.

Parker as well as Hlophe, Le Grange suggested, had both been economical with the truth with regard to the assault. Hlophe has denied assaulting Parker and has responded to this effect in his reply to Goliath’s complaint.

Parker angrily hit back at Le Grange in a letter he penned on 13 March stating that he stood by Hlophe’s version as submitted to the JCC. 

In this letter, Parker said that he had “reflected on the narrative” and that “very soon thereafter” he had come to the realisation that “events may not have unfolded in a way I had initially perceived”.

In their letter to Hlophe, Mogoeng and the JSC, the 10 judges set out that Parker’s version that he “very soon” came to realise that events may not have taken place as he had perceived, “is diametrically at odds with what he told other colleagues many months after the incident”.

They wrote that Parker’s “apparent and serious lack of integrity” is “irreconcilable with the judicial function, the more so since we are often called upon to sit in judgment on the honesty and truthfulness of litigants and witnesses”.

For this reason, the judges said, they were no longer willing to sit with Parker “for the time being”.

“The processes of the JSC inevitably takes time. Although Parker’s position must ultimately be determined through those processes, we consider that his materially inconsistent statements are manifest and publicly known.”

If any of his colleagues were to sit with Parker “the court so constituted would inevitably be tainted and we would individually be placed in a false position, since we would purport to be dispensing justice as members of a court characterised by honesty and integrity”.

The judges noted that Parker’s response to Le Grange’s revelations had only served to “exacerbate our concerns”.

They wrote that it was “common knowledge that, immediately after an alleged assault in his chambers in February 2019, Parker asked Wille to take down an affidavit, which Parker there and then swore before a commissioner of oaths, the purpose of the affidavit being to support a criminal charge”.

Until February 2020 the original of that affidavit had been “retained” by Wille.

Le Grange’s account of what Parker had told him “substantially accords with the Wille affidavit. It also accords substantially with what Parker has told other colleagues.”

With regard to Hlophe’s affidavit of 7 February 2020 in response to Goliath’s complaint, the judges note that “you deny that you assaulted Parker (though he is not named) and you give a description of the events in his chambers which is materially at odds with the one Parker gave under oath and subsequently recounted to several colleagues”.

Hlophe, in his affidavit, also set out that Parker had been shown part of Hlophe’s affidavit to the JSC which related to him “and agrees with it”.

“Since Parker did not subsequently refute what you said… we felt we had no choice but to conclude that he had given two materially inconsistent versions of the alleged assault, the one directly under oath, the other indirectly (in that he knew you would be incorporating his concurrence in your affidavit).”

Parker’s letter to Le Grange in which he set out that he had “misperceived” events had led the judges to conclude that “he [Parker] claims that the version he gave under oath in the Wille affidavit was false”.

“Regrettably, Parker has now chosen to give an even more problematic version,” they noted.

Parker’s statement also that he had come to the realisation that what happened in chambers was not what happened “very soon” after the assault was problematic.

“He does not state precisely when he came to this realisation, but in context ‘very soon’ must mean within a day or two, not within weeks or months.”

This point was important as Parker had given his account of the alleged assault to Le Grange in the third and fourth terms of 2019.

“He gave similar accounts to Judge Sher and Judge Henney in the third and/or fourth terms. And to yet another, he gave an account, towards the end of last year [2019], which has led the said colleague to conclude that Parker was either not telling the truth then or is not telling the truth now.”

The judges said that in October 2019, “some seven months after the alleged assault”, Goliath had met with Wille and Parker “in order to obtain confirmation of what had allegedly occurred”.

“Wille informs us that on that occasion he and Parker both gave the DJP an account of the alleged assault substantially recorded in the Wille affidavit. Parker at no stage said that the account was incorrect or that he was unsure of its correctness.”

But it was only on 17 February 2020, nearly a year after making the Wille affidavit and after Daily Maverick reported on its existence, that Parker had asked Wille to return it. 

“If Parker had come to the conclusion, shortly after 25 February 2019, that his affidavit wrongly implicated you in an assault, one would have expected him to seek its return at that time and also to inform Wille that the contents of the affidavit were incorrect. This he has never done.”

The judges revealed that they had met with Parker on 13 March 2020 and had informed him that “the best way for him to allay our concerns, and those of the public, as to his integrity would be to make the Wille affidavit available, even if  he wished to redact any part of it dealing with the prelude to the events in his chambers. He declined to do so.”

In light of Parker’s letter responding to Le Grange, disclosure of the affidavit was now “very relevant for an additional reason – it would shed important light on the plausibility of his recent allegation that he now ‘perceives’ events to have unfolded differently from what he stated in the affidavit”.

The judges said while they did not know from personal knowledge what had occurred between Hlophe and Parker, “what we do know is Parker has given materially inconsistent accounts of the incident”.

In light of the “unusual circumstances” of the matter, where both Hlophe and his deputy Goliath had an interest in the conflicting assertions made by Parker, the judges deemed it appropriate to “furnish a copy of the letter to the Chief Justice and the Secretariat of the Judicial Services Commission in order that it may be placed before the Judicial Conduct Committee”. DM