South Africa

Judiciary in Crisis

JCC says allegations against Judge Parker, if true, would amount to gross misconduct

Credit: A screen grab from the JSC confirmation hearing, courtesy of Judges Matter

A Judicial Conduct Committee has recommended that complaints by 10 fellow judges, as well as the Cape Bar Council, against Western Cape High Court Judge Mushtak Parker are serious enough that, should these be established, would amount to gross misconduct.

Acting chairperson of the Judicial Conduct Committee (JCC), Deputy Chief Justice Raymond Zondo, announcing the decision on Thursday 11 June, said that Parker’s alleged conduct in changing the versions of an alleged assault on him by Western Cape Judge President John Hlophe was “extremely serious”. This is particularly so because Parker is a judge.

The second complaint by the Cape Bar Council with regard to Parker’s duty to inform the JSC, prior to his appointment as a judge, that there had been a deficit in the trust account of a firm of which he had been the managing director would also indicate gross misconduct, added Zondo.

“If established, misappropriation of funds would be serious conduct that may inter alia reflect negatively on the integrity of the respondent. It will also prima facie indicate that the respondent would have acted in breach of the rules of the law society over a long period by not disclosing to the law society when there was a trust deficit in the trust account of his law firm.”

The committee had considered “both individually and cumulatively the two complaints” that would, if established, “prima facie indicate gross misconduct on the part of the respondent [Parker] that will be seen as bringing the judiciary into disrepute”.

The committee recommended to the Judicial Services Commission that these two complaints be investigated and reported upon by a tribunal. The decision of the committee was made in terms of section 16 (4) of the Judicial Services Commission Act.

The two complaints, by the 10 judges and the Cape Bar Council, were referred to the committee by Chief Justice Mogoeng Mogoeng in May 2020.

The 10 complainants in the first matter were Judges D Davis, S Desai, YS Meer, LJ Bozalek, AG Binns-Ward, ET Steyn, PAL Gamble, RCA Henney, OL Rogers and ML Sher.

Announcing the decision, Zondo said that the chief justice had “referred these complaints to this Committee because he took the view that, if established, the two complaints were likely to lead to a finding by the JSC that there was gross misconduct on the part of the respondent”.

The main affidavit by Judge Dennis Davis was deposed to on 23 March 2020 while fellow judges had deposed to affidavits confirming the contents of Davis’s affidavit.

In his capacity as chairperson of the Cape Bar Council, advocate Andrew Breitenbach deposed to an affidavit in support of the second complaint with regard to the trust fund deficit and Parker’s failure to make this known to the JSC.

While Breitenbach had pointed out that he did not have personal knowledge of the circumstances, information had been gleaned from court papers in an application instituted by the Legal Practice Council (LPC).

This was against Parker’s former partners or co-directors in the law firm of which he was part before he was appointed as a judge.

Zondo set out how the complainants and Parker had been notified that a virtual meeting would be held on 29 May at 10am and had been invited to make representations.

Three complainants had attended the virtual meeting, judges Desai, Davis and Meer, who had also instructed an attorney and counsel, advocate Hamilton Maenetje, to address the committee.

Parker’s attorneys had informed the chief justice that Parker would respond later to the second complaint by the Cape Bar Council as he had not yet been formally notified of it.

Judge Derek Wille had also, said Zondo, submitted an affidavit to the committee at the request of the chief justice and with regard to the complaint lodged by Deputy Judge President Patricia Goliath against Hlophe.

The Wille affidavit confirmed that Parker had deposed to an affidavit that Hlophe had assaulted him in chambers.

Zondo, handing down the decision, said that the complainants had posited that Parker had given “two contradictory and mutually exclusive versions about an incident which appears to have happened in his Chambers on 25 February 2019 between himself and Judge-President Hlophe”.

JCC Decision – Complaints Against Parker J -11 June 2020 – Final

The one version was that he was assaulted by the judge president and the other was that the judge president did not assault him, said Zondo.

“Six Judges in the Division, some of whom are complainants, have deposed to affidavits to the effect that they were told by the respondent that he had been assaulted by the Judge-President.”

These were Judges Wille, M Sher, J Cloete, E Steyn, A le Grange and Henney.

Although Goliath had not submitted an affidavit to the effect that she was one of the judges told by Parker that he had been assaulted by the judge president, Judge OL Rogers said in his affidavit that Wille had informed  him that in October 2019 that Parker told Goliath “in his presence that the Judge President had assaulted him.”

Judging from affidavits submitted to the committee, Parker had told the judges at different times and over a period of about 12 months that Hlophe had assaulted him.

Hlophe, in his responding affidavit, had stated that, “If this is the matter that Deputy Judge-President Goliath seeks to rely on to suggest that I assaulted a colleague, again she has told an untruth because she relied on rumour and gossip. The untruth scandalised and undermined the integrity of my leadership of the Division.”

Hlophe also told the JSC in his response to Goliath’s complaint that “The Judge concerned [Parker] has been shown this portion of the affidavit relating to him and he agrees with this version.”

In this version by Hlophe the assault never happened and Parker agreed.

The second complaint was about the “alleged dishonesty” on the part of Parker, who was appointed as a judge of the Western Cape Division on 1 November 2017.

Prior to that, Parker had practised as an attorney with the law firm Parker and Khan Inc in Cape Town.

In the questionnaire that Parker had had to complete and submit to the JSC after he had been nominated for appointment as a judge, Parker had pointed out that he had been the managing director or partner of that law firm.

Cape Bar Council Andrew Breitenbach said his complaint arose from, and was based on, information recorded in affidavits filed by the Legal Practice Council (LPC) in motion proceedings in the Western Cape Division of the High Court.

Another basis for the second complaint related to the trust account of Parker and Khan Inc.

“Mr Breitenbach avers that in the application brought by the LPC in the High Court, the grounds for the relief sought and for the striking off of the respondent’s past partners or co-directors in the law firm relate to the maladministration of the firm’s trust account.”

There did not appear to be any dispute in those proceedings that funds belonging to the firm’s trust creditors “were used to pay the firm’s business and operating expenses” and that “there was, therefore, as a result, a shortfall in the funds due for payment to a particular trust creditor”.

Breitenbach said there was no dispute that Khan had been involved in this alleged maladministration. The trust account of the firm, according to the LPC, had revealed “a continuous pattern of concealing trust deficits” by keeping a separate list of these.

The Cape Bar Council pointed out that this demonstrated “an element of deceit inimical to the honour associated with the profession of an attorney.”

The answer as to what the committee should do with the two complaints lay in  section 16(4) of the act, said Zondo, which read:

“(4) At the meeting referred to in subsection (2), the Committee must consider whether the complaint, if established, will prima facie indicate incapacity, gross incompetence or gross misconduct by the respondent, whereupon the Committee may –

“(a) refer the complaint to the Chairperson for an inquiry referred to in section 17 (2); or

“(b) recommend to the Commission that the complaint should be investigated by a Tribunal.”

Section 16(4) required the committee, when dealing with the referral of a complaint in terms of section 16(1), to consider whether, if established, the complaint will prima facie indicate incapacity, gross incompetence or gross misconduct on the part of the Judge concerned.

The reason the committee was required to recommend to the commission that a complaint that it believed would “prima facie indicate incapacity or gross incompetence or gross misconduct” should be investigated by a tribunal was that in terms of the JSC Act a tribunal was the only forum “that has jurisdiction to investigate complaints relating to incapacity, gross incompetence or gross misconduct”.

In this regard, it was important to bear in mind that “incapacity, gross incompetence and gross misconduct” were the only three grounds upon which a judge may be removed from office in terms of section 177 of the Constitution.

Section 16(4) required the committee, said Zondo, to make a value judgment as to whether, if the complaint is established, it would indicate incapacity, gross incompetence or gross misconduct.

If the first complaint were established it would mean that Parker had “acted dishonestly in giving two contradictory and mutually exclusive versions about the incident that happened in his Chambers between himself and Judge-President Hlophe on 25 February 2019”.

The committee’s view could only be based “on the facts presently before us”.

“On these facts, if the first complaint is established, the position will be that the respondent has no explanation for giving these contradictory versions, one of which has to be untrue.”

Given that Judge Wille had said in his affidavit that Parker deposed to an affidavit in which he said the judge president had assaulted him, if Parker maintained that he agreed with Hlophe’s version “that will mean that the respondent falsely implicated the Judge-President under oath.”

“To the extent that there may not have been any assault on the respondent by Judge-President Hlophe, it would mean that the respondent went around telling a number of Judges that the Judge-President had assaulted him when he knew quite well that there had been no such assault.”

To the extent that there may have been an assault on him by Hlophe, it would mean that, when Parker confirmed Hlophe’s version, “he did so with the full knowledge that he was corroborating a version that he knew to be untrue”.

If the complaint were established, added Zondo, it would also mean that, when Parker altered his version early in February 2020 and said that the judge president had not assaulted him, “he did so knowing that there was an affidavit in Judge Wille’s custody in which he had said under oath that the Judge-President had assaulted him”.

Without giving a valid reason as to why he changed versions, Parker’s conduct “would be seen as extremely serious, particularly because he is a Judge”.

“Furthermore, the respondent would have known that he was corroborating a version that Judge President Hlophe was going to place before the Judicial Conduct Committee.

“That would be very serious. Given the above and all the facts in the affidavits before us, we consider that, if the first complaint is established, it will, prima facie, indicate gross misconduct by the respondent.”

If the second complaint were established it would also “prima facie indicate gross misconduct on the part of Parker.

“If established, misappropriation of funds would be a serious conduct that may inter alia reflect negatively on the integrity of the respondent.

“It will also prima facie indicate that the respondent would have acted in breach of the rules of the law society over a long period by not disclosing to the law society when there was a trust deficit in the trust account of his law firm.”

Parker’s failure to disclose in his nomination questionnaire and in the interview before the JSC that the trust account of his law firm had had a deficit for a long time while he was the managing director was “extremely serious”, said Zondo.

Zondo was the acting chair of the committee and sat with fellow members Deputy Judge President Mojapelo, Judges Zondi and Dambuza, who agreed with the recommendation. DM

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