Suspended Western Cape judge Mushtak Parker has, since he was suspended on full pay in 2020, offered no defence to two complaints of gross misconduct against him. At every opportunity to give his side of the story, he has maintained a stony silence.
During closing arguments at his Judicial Conduct Tribunal on Tuesday, it was suggested that this amounted to an aggravating factor, compounding the gross misconduct he had committed.
“Despite the seriousness of the charges against him, he refuses to make a statement setting out a response. He refuses to give the tribunal any explanation of his conduct. There’s a body of evidence against him that calls for an answer, he refuses to answer,” said Geoff Budlender SC, counsel for 10 judges of the Western Cape division, who laid one of the complaints against Parker.
The 10 judges complained that Parker had given two different versions of an incident between him and former judge president John Hlophe in February 2019. The two versions were mutually destructive — one had to be a lie, said Budlender.
“‘Lied’ is an ugly word, but there is no justification for using a euphemism which makes what he did seem less serious,” he said.
In the one version, Parker said Hlophe had assaulted him in his chambers; that Hlophe had stormed in and accused him of flirting with his then-wife, judge Gayaat Salie-Hlophe, and violently pushed Parker against a cupboard. The assault led to Parker injuring his back because he had fallen against a key in the cupboard’s door. In the second version, he denied the assault. This was the version that Hlophe gave to the JSC when a misconduct complaint was laid against him.
Budlender told the tribunal on Tuesday that whichever version was true did not change the outcome — because Parker had lied either way. But the evidence overwhelmingly pointed towards the assault version being true, he said.
The assault was the version he told at the time. It was the version he had, at the time, put into an affidavit and told judge Derek Wille “contemporaneously”. It was also the version he told in the months that followed to five other judges. It was only almost a year later that he changed his tune, in a letter to judge Andre le Grange, and which was then reflected in Hlophe’s affidavit to the JSC.
Hlophe’s affidavit to the JSC was made in defence to a complaint against him by deputy judge president Patricia Goliath. Budlender said that if the assault version was the truth, Parker was confirming a “false denial” to the JSC by Hlophe.
“If [the assault version] is the truth, it is extremely serious. The Judicial Service Commission needs to be able to rely on the truthfulness of what it is told. A false denial, as in this instance, would amount to an attempt to prevent the JSC from carrying out its constitutional function,” he said.
The public would be scandalised if he continued to sit as a judge
— Geoff Budlender SC
Tribunal chair, retired Gauteng judge president Bernard Ngoepe, added that there was also the “real evidence” of a broken key from the cupboard door, which had been put before the tribunal — “which at the very least suggests that there must have been an altercation of some kind”, he said.
“Yes indeed, chair; and it’s unexplained,” said Budlender.
Then there was the second complaint, made by the Cape Bar Council, for which Parker throughout had also given no answer or explanation.
The Cape Bar Council’s counsel, Janet McCurdie SC, reminded the tribunal on Tuesday that Parker did not, at any point, dispute that his former firm had misappropriated trust funds — that funds belonging the firm’s trust creditors were used to pay business and operating expenses.
He did not dispute that he knew about this shortfall during the time he acted as a judge and when he applied to be a judge. He did not dispute that he had not disclosed it in his application, despite pertinent questions in the JSC questionnaire about whether there were “any circumstances, financial or otherwise, known to you which may cause you embarrassment in undertaking the office of a judge”.
McCurdie said that “of particular concern” was the evidence that he had instructed his brother, and partner in the firm, to withdraw money from his mother’s trust account with the firm — showing that he was not only aware of the misappropriation but “actively participated in it”.
The evidence leader, Nkululeko Ndzengu, said the fact that Parker had not answered or provided any explanation was “not what is expected of a judge”. He said throughout the disciplinary process, Parker had an opportunity to apologise. It was “regrettable” that such an apology was not forthcoming, he said.
Ndzengu, Budlender and McCurdie all argued the misconduct that Parker had committed was gross misconduct — Parker was not fit for judicial office. “The public would be scandalised if he continued to sit as a judge,” said Budlender.
Ndzengu suggested that the tribunal should recommend impeachment for Parker.
But Parker’s counsel, William King SC, said it was not within the tribunal’s powers to recommend what sanction Parker should face. This was the only issue that Parker took up in the whole of the course of his disciplinary process thus far.
The tribunal’s powers were limited to collecting evidence, conducting a formal hearing, making findings of facts, making a determination on the merits and submitting a report to the JSC, said King.
When questioned by the tribunal’s panel, King said that an apology was something that might come later, when Parker made submissions to the JSC on whether removal or impeachment was the appropriate sanction. But he accepted that Parker's silence was something that could be factored in by the tribunal when it was establishing the facts and determining whether there was gross misconduct.
Ngoepe said the tribunal’s panel findings would be delivered at a later date.
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