Concerns over Judge Mushtak Parker's silence amid misconduct allegations

Western Cape High Court Judge Mushtak Parker’s silence during the Judicial Conduct Tribunal into two complaints of gross misconduct came under strict scrutiny as the Tribunal heard closing arguments on the matter on Tuesday.

The Tribunal reserved its decision in the matter in which Parker is accused of bringing the judiciary into disrepute by committing the cardinal sin of lying under oath when he deposed an affidavit which alleged that he was physically assaulted by Judge President John Hlophe and then, a year later, retracted that version in a contradictory affidavit.

In the second complaint, the Cape Bar Council accused Parker of misconduct for not disclosing pertinent information in his application and at his interview to be a judge.

Parker omitted information relating to the professional affairs of his former law firm, which is accused by the Legal Practice Council of misappropriating R8 million of client monies (by running up a deficit in a client’s trust account).

The complaints against Parker indicate gross misconduct that will be seen as bringing the judiciary into disrepute and could spell his impeachment. 

Before the Tribunal, Parker elected not to call any witnesses or challenge the evidence led.

JSC evidence leader Dr Chris Ndzengu in closing arguments pointed out that a judge should exhibit and promote high standards of judicial conduct to reinforce public confidence in the judiciary, which is fundamental to the maintenance of justice. 

“This Tribunal is on a fact-finding mission and exercise, and with that in mind, the Tribunal must establish the truth in this matter. I make my submission that the silence from the respondent (Parker) has closed the door to this Tribunal in knowing what actually happened. That is not what is expected from or of a judge,” said Ndzengu.

Ndzengu highlighted the corroboration of the first complaint, where ten justices confirmed one aspect of the complaint relating to the alleged assault that occurred. 

“Since it took place, Parker’s change of tact indicating that it never took place led to the stressful tension within the bench in Cape Town to the extent that a number of justices resolved not to sit with Parker or share the bench with him and that is the consequence of the untruth,” said Ndzengu.

In closing arguments for the judges who corroborated evidence against Parker in respect of the alleged assault, Geoff Budlender, said all accounts of what happened were consistent with the initial affidavit made by Parker. 

Budlender submitted that Parker, who submitted a contradictory affidavit to the alleged assault by Hlophe, “lied repeatedly” to eight colleagues over a year. 

Parker’s refusal to break his silence or offer an apology has been interpreted as “ugly”, and his conduct during the hearing was described as “unacceptable”.

“Parker has given two conflicting versions of the assault of Hlophe. We submit that the outcome of this inquiry is the same whichever of those versions is the truth. We do say that the overwhelming probability of the evidence is that judge Hlophe assaulted judge Parker, and that's what he said in a contemporaneous affidavit, and that is what he said happened in private discussions with eight of his judicial colleagues,” said Budlender.

Budlender further submitted that Parker deliberately told an untruth and that if a judge lies to the Judicial Service Commission (JSC) it cuts the credibility of the judiciary in the public’s eye and “if a judge lies repeatedly, he is not fit for a judicial role”.  

Judge Bernard Ngoepe, who chaired the hearing, added that the picture of a broken key which was damaged after Parker was allegedly shoved into a cabinet in chambers, is real evidence of an altercation that occurred. 

Parker’s senior counsel, William King, said his client’s silence should not be seen as “ugly” and should not be considered as an aggravating factor. 

King further submitted that the sanction to be imposed is for Parliament to decide.

Cape Times