The scandal around judges of the Western Cape is developing with astonishing speed. Following a dispute between the judge president, John Hlophe, and his deputy, Patricia Goliath, over the latter’s claims relating to the JP’s alleged inappropriate, even racist, behaviour, a related row has erupted about a third judge, Mushtak Parker. According to Goliath DJP, Judge Parker was assaulted by the Judge President in chambers. First the JP and then Parker J himself, denied this was so. Then another member of that bench, Judge Andre le Grange said he would no longer be willing to sit in cases with Judge Parker since he (Parker J) had produced conflicting accounts of what had happened in relation to the alleged assaults. Today, 10 judges of the same division sent a letter to the JP, saying they too will no longer sit with Parker J because of the varying versions he has produced of what happened between himself and the JP. One of these versions, made under oath soon after the alleged assault oath, conflicts with his latest statement denying that anything significant happened between him and the JP. The 10 said that, in producing conflicting versions, one of which contradicted a statement he made under oath, the judge acted in a manner unbecoming of a judicial officer, since judges were always supposed to act honourably and in a manner befitting their office.
The letter written by 10 judges of the Western Cape High Court, speaks clearly about three issues.
First, they make clear that they are deeply concerned about the conduct of one of their colleagues, Judge Mushtak Parker, in giving conflicting versions of a potentially very serious incident involving himself and the Judge President. One of these versions was made under oath. However, in subsequent statements he has said that his original version (told by way of affidavit) was based on an inaccurate ‘perception’ of what had happened. He then appeared to change his story completely.
The 10 are so concerned about these contradictions – ‘materially inconsistent accounts of the incident’ – that they are no longer willing to sit with him on any case. They say that his ‘apparent and serious lack of integrity’, which is ‘irreconcilable with the judicial function’, would compromise a bench of which he was a part, given that judges must ‘sit in judgment on the honesty and truthfulness of litigants and witnesses’.
Second, the judges make it clear that they are not willing merely to wait for the Judicial Service Commission, the body that deals with matters of judicial discipline, to handle the matter. This is because the commission takes so long: ‘The processes of the JSC inevitably take time.’ Although the position of Judge Parker must ultimately be determined by the JSC’s processes, ‘we consider that his materially inconsistent statements are manifest and publicly known.’ They feel they must act, while waiting for the JSC.
‘If any of us were to sit with him, the court so constituted would inevitably be tainted, and we would individually be placed in a false position, since we would purport to be dispensing justice as members of a court characterized by honesty and integrity.’
The judicial code of conduct made clear that judges were to uphold the integrity of the judiciary and the authority of the courts. They said a judge was always to act honourably and in a way befitting of judicial office – not just in the discharge of his or her official duties. The implication here is that Judge Parker had not acted honourably, in that he had backed off from a statement he made under oath.
They pointed out that, in terms of the judicial code of conduct, when a judge ‘reasonably believes’ that a colleague has been acting in a way that is ‘unbecoming of judicial office’, the matter must be raised with that colleague or with the head of the court.
This brings us to the third main point of the letter.
The 10 judges said that, given the unusual circumstances of this case, where both the Judge President and the Deputy Judge President had an interest in the conflicting assertions by Judge Parker, it was not appropriate to request either of them to take action. For this reason, the 10 had decided to send a copy of their joint letter to the Chief Justice and to the secretariat of the JSC so that it could be dealt with by the Judicial Conduct Committee.
More background: On 10 March Judge Andre le Grange, also of the Western Cape High Court, wrote to the JP saying he was unwilling to sit with Judge Parker. This was for substantially the same reasons as the 10 now say they too will not preside with him in any matter – namely, that he had produced conflicting versions of a very serious allegation against the JP.
That story was first made public in a letter by the DJP complaining more broadly about the JP. Among other issues, she mentioned the JP’s ‘assault’ of a fellow judge.
The story of the ‘assault’ has since grown hugely in significance.
It emerged that Judge Parker had made a statement in which he described, under oath, an assault on himself by the JP. However, Judge Parker subsequently told Judge le Grange that he did not agree with the version (of his own statement) now being put about in relation to what had happened.
He said that after he reconsidered the ‘alleged assault’ he realised, ‘very soon’ afterwards, that ‘events may not have unfolded in a way I had initially perceived’. In other words, he was now disputing the version he had described in his affidavit, putting that original version down to his ‘emotional state’ at the time.
Judge Parker also said that in the light of his subsequent version of what happened, there were no grounds for any complaint against the JP in relation to the alleged assault.
He was also critical of Judge le Grange who had said he refused any longer to sit with him (Judge Parker) in view of these differing versions of the ‘assault’. Judge Parker also questioned Judge le Grange’s motives for deciding not to sit with him any longer.
Now, however, 10 other judges have taken a similar stance to that of Judge le Grange, strongly critical of their colleague and his apparent retraction of a statement under oath.
If the JSC had proved itself willing and able to grasp difficult cases and deal with them swiftly, strongly and efficiently, this situation might have been contained. However, the commission’s appalling record on judicial discipline has led to an untenable position in which judges bypass the JP and the DJP and take matters into their own hands to ensure the probity of the court of which they are part.
Who, it has to be asked, can blame them?