South Africa

Judiciary in Crisis

Judge President Hlophe “struck me with his fist on my chest, after repeatedly threatening to f*** me up” – Judge Parker

Western Cape Judge President, John Hlophe during the Judicial Service Commission tribunal which is investigating a complaint of judicial misconduct against him on October 3, 2013 in Johannesburg, South Africa. (Photo: Gallo Images / Foto24 / Nelius Rademan)

An affidavit that Western Cape High Court Judge Mushtak Parker deposed under oath on 25 February 2019 that he was assaulted by Western Cape Judge President John Hlophe has been submitted to the Judicial Conduct Committee (JCC) inquiry which heard the matter on Friday, 29 May.

 

Parker’s affidavit was handed to the JCC which conducted an inquiry into complaints lodged by Deputy Judge President Patricia Goliath against her boss, Western Cape Judge President John Hlophe, as well as a subsequent complaint by Hlophe against Goliath.

Parker did not attend the hearing and a decision on the matter, which has cleaved the Western Cape Division, will be given in about two weeks.

This is the first occasion that Parker’s affidavit, which he had given to the fellow judge, Eduard Derek Wille, for “safekeeping”, has been submitted as part of the record. 

It was only after Goliath’s complaint about Hlophe to the Judicial Service Commission (JSC) in January 2020 that Parker attempted to retrieve the affidavit from Wille’s safekeeping, a year after the alleged incident.

Parker has since denied that he was assaulted by Hlophe, claiming he had “misunderstood” what had happened between him and the judge president.  Hlophe too has denied the assault as well as other charges of “gross misconduct” as set out by Goliath in her complaint to the JSC.

However, in the affidavit which Parker had requested Wille to draw up as he was not “computer literate” and had not wanted his registrar “to bear any knowledge of the incident”, Parker sets out events that took place in his chambers on 25 February 2019.

Parker states that he was alone when Hlophe had entered around noon and had accused him of being racist and of wanting “to screw his wife”. (Judge Gayaat Salie-Hlophe.)

“I advised the Judge President that these allegations were false. The Judge President lost his temper and struck me with his fist on my chest, after repeatedly threatening to ‘fuck me up’,” Parker set out.

Parker said he had fallen to the ground “and in so doing broke the key that was in the cupboard housing some of my legal books”.

In a letter to Chief Justice Mogoeng Mogoeng, as chair of the JSC, Wille’s legal representative, Stephen Thomson of Thomson Wilks Inc, set out that Wille and the JP “are very good friends and Judge Wille values the friendship”.

Thomson said Wille did not want to become “further embroiled” in the dispute but attached Parker’s affidavit with annexures as directed by the CJ.

The JCC also received letters and affidavits by at least 10 judges in the division who have expressed their reluctance to sit with Parker as he had given contradictory versions of the assault.

Wille’s lawyer said it was not disputed that Parker had requested Wille to “hold the completed and commissioned affidavit in ‘safe-keeping’ for the benefit of Judge Parker”.

The affidavit was returned to Parker by Wille on 17 February 202o after media reports had identified Parker as the judge Hlophe had allegedly assaulted. The claim is one of many made by Goliath in her complaint about Hlophe to the JSC.

While Wille and Hlophe had been close friends for “almost 40 years” and it was a friendship that Wille “values greatly”, Wille “acknowledges his obligations in terms of the Code of Judicial Conduct” to make available Parker’s affidavit to the inquiry.

Wille had subsequently retrieved Parker’s affidavit from a “Time Capsule” housed in his Chambers at the High Court.

In his affidavit, Wille set out that Parker had entered his chambers on 25 February 2019 and had informed him “about an incident with the Judge President.”

“Judge Parker asked me if I would assist him to prepare an affidavit to record these events as he was not computer literate and he did not want his registrar to bear any knowledge of the incident,” said Wille.

Almost a year later, on the morning of 17 February 2020, and after it had become public that Parker was the colleague Hlophe was alleged to have attacked as set out in Goliath’s complaint, Parker had called Wille and had asked him to return the signed affidavit.

He said he had assisted Parker and had prepared an affidavit. 

“Judge Parker then asked me to email the affidavit to his private email address and I obliged. The content of the unsigned affidavit is precisely the same as the content of the affidavit which was subsequently deposed before a commissioner of oaths by Judge Parker.”

Parker, said Wille, had returned to his chambers on the same afternoon and had handed him a signed version of the affidavit that he had drafted for him.

“The signed affidavit had now been deposed to me by Judge Parker before a commissioner of oaths. Judge Parker asked me, please to keep this signed affidavit for him in a safe place as he was undecided on what to do about the alleged incident that had occurred between himself and the Judge President.”

Almost a year later, on the morning of 17 February 2020, and after it had become public that Parker was the colleague Hlophe was alleged to have attacked as set out in Goliath’s complaint, Parker had called Wille and had asked him to return the signed affidavit.

“He advised me that it was ‘his affidavit’ and ‘his annexure’ and that these documents be delivered to him at his chambers.”

Wille said he had told Parker that while he had been inclined to agree with “his view on the status of the signed affidavit, I needed to obtain a second opinion from senior counsel who was assisting me in this matter”.

Wille had been advised to return the affidavit to Parker with a covering letter and later did so “in a sealed envelope marked for his attention”.

The CJ, as chair of the JCC, had also requested from Judge Kate Savage any “relevant information” with regard to the alleged physical attack by Hlophe on Parker.

Savage, in an affidavit to the inquiry, set out how in late 2019 Judge President Basheer Waglay of the Labour and the Labour Appeal Court (LAC), had requested Savage to act in the LAC for two terms in 2020.

“I approached Judge President Hlophe in his chambers to discuss this. At the end of our discussion Judge Salie-Hlophe arrived. I proposed to leave but was invited to remain.”

Salie-Hlophe, said Savage, had shown her the copy of a letter in which she had raised a complaint of sexual harassment against Parker.

“After I asked for some details, Hlophe JP requested that I follow him with Salie-Hlophe J to his adjacent meeting room. I understood that this was to discuss this issue,” said Savage.

The judges in the meeting room were Hlophe, Salie-Hlophe, Parker, Judge Taswell Papier and Savage. Parker and Salie-Hlophe had indicated that the matter had been resolved and an agreement was reached that a statement would be issued in response to a media query that “no issue existed.”

Savage maintained that she had “stated expressly at the meeting that judicial misconduct must be referred to the Judicial Conduct Committee (JCC) for determination.”

“Hlophe JP was apparently angered by the complaint raised, had shouted at Parker J and then allegedly assaulted him by pushing him against a door in his chambers in such a manner that it caused the key in the lock of the door to break.”

“After the meeting Parker J and I walked back together to our respective chambers. While doing so, I asked Parker J whether the only issue being discussed at the meeting was the sexual harassment complaint raised by Salie-Hlophe J against him.”

Parker had replied that it was not “and that, although not mentioned at the meeting, the meeting had also concerned an assault perpetrated on him by Hlophe JP”.

Savage said she had been shocked and had asked Parker what had taken place.

“Parker J told me in some detail that following the sexual harassment complaint raised against him by Salie-Hlophe J, Hlophe JP had come to his chambers.

“Hlophe JP was apparently angered by the complaint raised, had shouted at Parker J and then allegedly assaulted him by pushing him against a door in his chambers in such a manner that it caused the key in the lock of the door to break.”

Parker had also told Savage that his back had bled as a result of the injury caused by the key.

“He said he had been deeply shocked and had suffered some trauma after the event, more so given his age and that he had not experienced an incident of such a nature before.”

Savage said that she had indicated to Parker that “such an allegation of judicial misconduct should be referred to the JCC and asked him if he had done so. He told me he had not but that he had deposed to an affidavit recording events which was in the possession of Judge Wille.”

Savage had contacted Papier shortly afterwards and had informed him that she had been shocked to learn from Parker about the alleged assault.

“I told Papier J that I had known nothing of any such allegation of assault when at the meeting and that a press statement could not be issued stating that no issue between judges existed given the seriousness of this allegation.”

Papier had in turn informed Savage that he had been aware of the allegation of assault but that this had been “discussed and resolved, apparently on a previous occasion”.

“I have no knowledge of this but indicated to Papier J that allegations of judicial misconduct must be referred to the JCC for determination. I stated that the press statement drafted could not record that there was no issue between the parties as such a recordal would be false. It later came to my attention that the wording of the press statement had been altered.”

Savage added that she had no knowledge of the veracity of the allegation made and had understood from media reports that Hlophe had denied it “and that Parker J, more recently, has also denied any assault.”

“I consider it both deeply regretful and damaging to the judiciary that serious allegations of misconduct have abounded and am of the view that the truth or otherwise of such allegations clearly urgently require determination.”

She said that she had always maintained a positive working relationship with colleagues and had expressed her support for the “steps taken by Hlophe to transform the Western Cape High Court in the face of, at times, what I have viewed as unwarranted opposition”.

While she supported efforts to “build a strong and transformed judiciary”, she also supported the requirement that judges be held to “the standards of ethical conduct required of them through the applicable processes established by law to do so”. DM

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