JUDICIARY IN CRISIS

Judge Mushtak Parker faces suspension for gross misconduct

By Marianne Thamm 14 October 2020

Judge Mushtak Parker. Credit: A screen grab from the JSC confirmation hearing, courtesy of Judges Matter

The Judicial Service Commission says it ‘will advise the President that it would be desirable for the President to suspend Judge Parker in terms of section 177(3) of the Constitution’.

Marianne Thamm

The Judicial Service Commission (JSC) has advised President Cyril Ramaphosa to suspend Western Cape Judge Mushtak Parker pending the findings of a Judicial Conduct Tribunal into gross misconduct.

Parker has been accused by 10 colleagues in the division of providing conflicting versions of an alleged assault on him by his boss, Western Cape Judge President John Hlophe, in 2019. This rendering of two different versions may have made Parker guilty “of gross misconduct”.

The Western Cape Bar Council had also complained to the JSC that Parker had not disclosed when he was interviewed for the Bench that a law firm to which he was connected had an R8-million deficit in its trust account.

This matter, the JSC said, was “extremely serious” and if proven “would constitute gross misconduct on his [Parker’s] part”.

JSC spokesperson CP Fourie made the announcement in a statement released to the media on Wednesday 14 October.

The Judicial Conduct Committee (JCC) had been tasked in May with considering the complaints and submissions, and on 9 October made recommendations.

“The JSC will, in terms of section 19(4) of the JSC Act, inform the President that it has requested the Chief Justice to appoint a Tribunal. Furthermore, the JSC will advise the President that it would be desirable for the President to suspend Judge Parker in terms of section 177(3) of the Constitution pending the finalization of the complaints,” read the statement.

The Constitution allows for the suspension of a judge by the president on the advice of the JSC when that judge is the subject of an impeachment procedure. 

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

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 in June to investigate the complaints, Deputy Chief Justice Raymond Zondo, acting chair of the JCC, 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 on 23 March, 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.

On 9 October the commission considered the recommendations of the committee and the submissions made by the complainants and found that “with section 19 (1) (a) of the JSC Act that Judge Parker may have acted dishonestly in giving two contradictory and mutually exclusive versions about an incident that happened in his chambers between himself and Judge-President Hlophe on 25 February 2019”.

Parker’s suspension will be on condition that he finalises part-heard and reserved judgments and will endure until the complaints are finalised. DM

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  • So over A year after his allegation against Chief Justice Hlope the JSC recommends that Judge Parker be suspended , strange then that over 10 years since it was alleged the Hlope approached two Constitutional Court Judges and various matters since there has been nary a word .

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