Judges Matter says the Judicial Conduct Tribunal must investigate complaints of misconduct brought against Western Cape Judge Mushtak Parker.
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Judicial watchdog Judges Matter has called on the Judicial Conduct Tribunal to launch a full investigation into the two complaints made against Western Cape Judge Mushtak Parker.
The organisation said the tribunal should get to the truth of the complaints.
The Judicial Conduct Tribunal is expected to hear closing arguments Tuesday after the matter was postponed in February.
The Tribunal is also expected to make a finding on whether the evidence before it amounts to gross misconduct.
This was after the Tribunal, chaired by retired Judge President Bernard Ngoepe, wrapped up witness testimonies in a marathon that saw all ten witnesses testify in a single day.
The witnesses included eight current and former judges of the Western Cape High Court, Advocate Andrew Breytenbach and Irfaan Parker, who is Judge Parker’s brother and former law firm partner.
Judges Matter said the outcome of this case could have major consequences for judicial accountability.
Judge Parker faces two allegations of misconduct - one from the ten fellow judges and another from the Cape Bar Council, both relating to dishonesty.
In the first complaint, Judge Parker is accused of the cardinal sin of lying under oath by deposing to an affidavit stating that he was physically assaulted by Judge President John Hlophe, only to retract that version in a contradictory affidavit a year later.
In the second complaint, the Cape Bar Council accused Judge Parker of misconduct for not disclosing pertinent information in his application to be appointed as a permanent judge of the Western Cape division when he omitted details.
This information relates to the professional affairs of his former law firm, which is accused by the Legal Practice Council of possibly misusing over R8 million of client monies (through running up a deficit in a client’s trust account), and that Parker had a role in this as a partner in the law firm. This complaint was also referred to the Tribunal, and if substantiated, it may lead to a finding of gross misconduct for which Parker might be impeached.
The Tribunal was established by the Judicial Service Commission (JSC) to investigate the allegations in October 2020.
All the parties to the Tribunal have filed heads of argument ahead of the closing arguments, which is set to take place Tuesday. Both the complainants - the Cape Bar Council and the ten judges of the Western Cape High Court - confirmed the evidence they gave in their testimonies in February.
However, it was pointed out by all parties that Parker has failed to answer or challenge any of the serious charges against him. Both complainants, as well as the evidence leader, are arguing for a finding of gross misconduct and Parker’s impeachment under Section 177(1)(a) of the Constitution.
Judges Matter said consistent with the hearing on February 24, Judge Parker’s heads of argument do not provide any compelling answer or challenge to the evidence brought against him.
“Instead, they focus on a procedural point raised in the final paragraph of the evidence leader’s heads of argument, which urges the Tribunal to recommend to the JSC that Section 177(1)(a) of the Constitution be invoked. Parker argues that this request exceeds the Tribunal’s powers, as it can only make findings of fact, not the kind of recommendation called for by the evidence leader.
“Interestingly, it appears that Judge Parker has placed significant importance on making representations to the JSC after the Conduct Tribunal has submitted its report. He argues that this is the appropriate stage for the consideration of any mitigating factors, and that it would be inappropriate for the Tribunal to make a recommendation before such factors are on record. This may explain the lack of evidence provided and the limited cross-examination conducted by Parker’s team during the Tribunal stage.”
The watchdog said that if there was no assault, as the Judicial Conduct Committee (JCC) found, then Judge Parker misled several of his fellow judges into believing that there was an assault against him and would have falsely implicated Judge Hlophe in such an assault.
The organisation said that if, on the other hand, there was an assault, it would be grossly dishonourable for Judge Parker to corroborate JP Hlophe’s version that the assault did not happen when he knew this to be untrue.
Judges Matter added that Judge Parker’s failure to disclose relevant information he applied to be a judge similarly raises questions about his integrity.
The watchdog said if the allegation is substantiated, this could also lead to a finding of gross misconduct as Judge Parker would have acted in breach of the professional rules of the Legal Practice Council over a long period by not disclosing to the regulator when there were deficits in the trust accounts of his law firm’s clients, which is a serious violation.
The organisation added that Judge Parker would also have acted in breach of judicial ethics by failing to disclose in his application questionnaire and the interview before the JSC such a grave matter as a deficit in a client’s trust account.
Cape Times