Ramaphosa advised to suspend high court judges over misconduct claims

The Judicial Service Commission (JSC) has advised President Cyril Ramaphosa to suspend Western Cape High Court judge Mushtak Parker until a judicial conduct tribunal has decided whether to recommend he be impeached for gross misconduct.

In a statement on Wednesday, the JSC announced that it would advise two suspensions for complaints of gross misconduct.

Apart from Parker, Gauteng high court Judge Nana Makhubele also faces suspension pending resolution of a gross misconduct investigation against her.

If Ramaphosa suspends the two judges, they will be the first suspensions on gross misconduct claims in SA’s history since 1994.

Parker faces impeachment on two grounds.

In the first, he is alleged to have been involved in the misappropriation of client trust funds while he was an attorney, and in the period leading up to his appointment as a judge. He did not disclose this to the JSC when he was nominated and interviewed to be a judge.

Second, he is the judge that judge president John Hlophe is alleged to have assaulted in chambers. The complaint — from at least 10 other judges in his division — is that, for months, he told them that Hlophe had assaulted him, yet, when the assault became the subject of a complaint and counter-complaint between Hlophe and his deputy Patricia Goliath, Hlophe denied the assault and said Parker would back him up.

In an affidavit to the judicial conduct committee, Hlophe said he had shown the portion of his affidavit where he dealt with the assault allegation to Parker.

Parker also wrote to his colleague, judge Andre le Grange, who had refused to sit with him, and explained the difference in versions. He said that “having reflected” after their argument, he realised that “events had not unfolded in the way I had initially perceived”.

He said he came to this realisation “very soon thereafter”.

In a letter from the JSC to the Cape Bar Council on Wednesday, JSC secretary Sello Chiloane said that Parker “may have acted dishonestly in giving two contradictory and mutually exclusive versions” of the assault. In this he may have rendered himself guilty of gross misconduct, said the letter.

His having failed to disclose to the JSC that the trust account of his law firm had a deficit for a long time while he was MD “is extremely serious and would constitute gross misconduct on his part”. 

In January, the Cape Town office of the Legal Practice Council obtained an interdict to stop Abdurahman (Abie) Khan and Irfan Parker — judge Parker’s former partners — from acting as attorneys, pending an application to strike them off the roll.

In its court papers, the LPC’s Janine Myburgh said the misappropriation of trust funds by an attorney was “the worst professional sin that an attorney could commit”.

Detailing how in some matters at Parker’s law firm, money had been “rolled” from one client’s trust account to pay what was due to other clients, Myburg said: “One is not dealing here with trust deficits arising from simple accounting errors. There appears to be a continuous pattern of concealing trust deficits ... which demonstrates an element of deceit, inimical to the honour associated with the profession of an attorney. The attorneys' profession demands of its members complete honesty, reliability and integrity.”

The case has yet to be set down for hearing.

On the assault, the original story that Parker is alleged to have told his colleagues was that Hlophe had come into his chambers and accused Parker of wanting to have sex with his wife, Judge Gayaat Salie-Hlophe. He had struck him or pushed him on his chest. When he stumbled backwards he hit the door of a bookcase and was injured by a key.

However, he later said he had been in an emotional state at the time and realised “very soon” after that things had not unfolded the way he initially perceived.

But the 10 judges who complained against him, when they earlier wrote to Hlophe to say they would not share a bench with Parker, said this was even more problematic. This was because, though the alleged assault happened in February 2019, during the second and third quarter of the year and as late January this year, he was saying something different to colleagues, they said.

“On any reckoning, these various accounts were given long after the expiry of what could be described as a date ‘very soon’ after the alleged assault,” they said.  

In their letter to Hlophe, in March, they said: “We do not know from personal knowledge what happened between you and Parker J in his chambers. What we do know is that Parker J has given materially inconsistent accounts of the incident. We know, also, that his recent allegation that ‘very soon’ after the alleged assault, he came to realise the events may not have unfolded in the way he had perceived is diametrically at odds with what he told other colleagues many months after the incident.”

In its letter to the Cape Bar Council, the JSC said it had advised Ramaphosa to suspend Parker in terms of Section 177 of the constitution. The section says the president “may” suspend a judge who is the subject of an impeachment process under the constitution.

The JSC has said that it wants the judge to finalise his part-heard matters and hand down his reserved judgments and that this should be a condition of his suspension.

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