Opinionista • Paul Hoffman • 23 March 2020
Swift and decisive action is required to bring an end to the dire straits in which the Western Cape High Court finds itself.
“Oh what a tangled web we weave when first we practice to deceive.”
Sir Walter Scott’s words, borrowed for this analysis, are as true today as when he first wrote them about 200 years ago.
For any interested observer, and we should all be interested in the proper administration of justice in our courts, it ought by now to be plain that swift and decisive action is required to bring an end to the dire straits in which the Western Cape High Court (WCHC) currently finds itself.
The suppurating sore that has blighted its supposed leadership for years has recently erupted into serious allegations and counter-allegations in the public domain by 15 judges. All of the accusations and counter-accusations cannot possibly be true as many of them are mutually contradictory. Some of them have been made on oath and some speak to acts of criminality that are absolutely intolerable: Namely a “vicious” assault and lying about it in affidavits made by two members of the Western Cape High Court (WCHC) Bench.
The significance of lying on oath, or “committing perjury” as it is called in the criminal courts, should not be lost on the lay observer of the saga. Judges should be of impeccable integrity and unswerving probity; they should not lie on oath and if they do, they should be removed from office after a swift and incisive investigation. The mutually contradictory oaths made suggest that impeachment or removal from office for gross misconduct, as the Constitution puts it, is the appropriate remedy.
The provisional indications, on all of the information currently under public scrutiny, are that the Judge President, John Hlophe, has lied on oath when denying he assaulted his colleague Judge Mushtak Parker in his chambers in February 2019.
Understandably, this aspect of the saga has been treated with kid gloves by his colleagues on the WCHC Bench. Hlophe is their leader: If he survives full and proper scrutiny, his colleagues will either have to work under him or resign en masse.
Perplexingly, the prima facie perjury has been ignored by the majority of the panel of three senior judges to which the complaints and counter-complaints between Deputy Judge President, Patricia Goliath, and her Judge President were referred by the Deputy Chief Justice. The majority has closed its eyes to the bigger picture sketched below, preferring a parsimonious and blinkered conspectus of that which has been placed before it on oath. This approach can (as the JSC rightly acknowledges), and should be revisited; it will need to be corrected if the interests of justice are to be properly served.
It is plainly wrong to approach a dispute featuring the possibility of finding, after an appropriate process, criminal activities on the part of a JP (assault and perjury) as anything short of gross misconduct justifying his impeachment. After all, both the alleged vicious assault on a new colleague and lying about it on oath are criminal offences which those sworn to uphold the law ought not to commit.
An inquisitorial process, contemplated in the applicable legislation for non-impeachable less serious offences, in which there is no onus of proof, is not suitable for finally resolving the disputes of fact that are apparent from the conflicting versions and the falling around between versions now in the public domain.
A diligent inquisitor who proactively delves into the disputed facts is either going to find that the JP was the victim of a sustained campaign of false vilification by Parker or that the JP has perjured himself by falsely denying, on oath, that any assault took place. The probabilities point in the direction of the latter finding. This finding will require that the matter be referred to a tribunal having jurisdiction to recommend an impeachment, which will involve more delay to accommodate its adversarial procedure in a matter deserving of urgent treatment.
The inquisitors, yet to be appointed in this dispute, play the role of a referee in a soccer match, not the role of an umpire in a game of cricket. Inquisitors are actively involved in investigating the facts of the case. The normal system in SA is the adversarial approach in which a more passive role is played by judges, who act as umpires, not referees.
The long and chequered disciplinary record of the JP reveals unwillingness on the part of previous inquisitors to play their proper role with the diligence required. This failure ought not to be repeated on this occasion.
The Code of Judicial Conduct, Article 5, and the notes thereto read as follows: “(1) A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office. (2) All activities of a judge must be compatible with the status of judicial office. NOTES: Note 5(i) A judge behaves in his or her professional and private life in a manner that enhances public trust in, and respect for, the judiciary and the judicial system. Note 5(ii) A judge avoids impropriety and the appearance of impropriety in all the judge’s activities. Note 5(iii) A judge does not engage in conduct that is prejudicial to the effective and expeditious administration of the business of the court. Note 5(iv) Judicial conduct is to be assessed objectively through the eyes of the reasonable person.”
A brief overview of the salient points is indicated to enable and facilitate the objective assessment required.
First, Goliath complained to the Judicial Service Commission in January 2020 that, inter alia, her JP had assaulted a recently appointed colleague in his chambers at the court. In his response to the complaint, the JP denied having assaulted Parker. Instead, he swears that he “cautioned” Parker “against being perceived to be inappropriate in his interaction with women colleagues”. The JP records, on oath, that Parker “has been shown this portion of the affidavit relating to him and agrees with this version”.
Next, by way of a letter to the JP dated 11 March 2020, Judge Andre le Grange, bravely and with fealty to his oath of office, says that Parker told him that “you viciously pushed him against a cupboard in his chambers”, but that “some fellow judges persuaded him [Parker] not to file a criminal complaint against you”. Le Grange was later shown Parker’s sworn statement by Judge Derek Wille (recording the details of the assault), “as proof that he holds it for safekeeping”.
Parker has publicly responded to Le Grange’s allegations by stating that they are “contrived, purely opportunistic and perhaps a cynical attempt to influence” the disciplinary case against the JP. He further claims that the assault on him “may not have unfolded in the way I initially perceived” driving him to conclude that “a complaint of any nature in this regard will be both inappropriate and unnecessary”.
He regards the alleged assault as a matter between the JP and him: personal, private, confidential and fully resolved. This is impossible as it was bruited about by Parker himself (as recently as December 2019, many months after the event), and is now the subject matter of what, on the face of it, is a perjured affidavit by the JP, all of which grossly contravenes the code as quoted from above. If there was no assault, Parker ought to be in big trouble for bad-mouthing the JP for the best part of a year between February and December 2019.
It is perhaps significant that Parker has not confirmed on oath the version of the incident deposed to by the JP. It would contradict what he calls “a complaint of any nature” (surely a tacit admission that he gave the sworn statement to Wille in which he records the assault), and lay Parker open to a charge of perjury. He is too canny to add that to his current woes, about which, more below.
So far, Wille has “kept his peace”, but 11 of his colleagues on the WCHC have sided with Le Grange and have confirmed in a letter to the JP that Parker was, until recently, repeatedly telling some of them that he had been assaulted by the JP.
If it is true that the JP did assault Parker, the JP’s denial on oath is an obvious case of perjury and this fact alone disqualifies him from continuing in office as a judge. The stakes are that high. If, on the other hand, Parker has been falsely maligning his JP, he too is in for the high jump.
Apparently, on what has emerged thus far, only the JP and Parker were present when the alleged assault (2019 version), or “cautioning” (2020 version), took place. If there are “ear-witnesses”, who heard the fracas they have not yet come forward, although they should. At present, the JP and Parker are both saying, in their different ways, that actually no assault occurred. Why then would Parker prepare a sworn statement to present to the police in support of a complaint of assault? Why would he give the statement to his colleague Wille for safekeeping? Safe from whom? Why did Parker not depose a confirmatory affidavit in relation to his being “cautioned” by the JP? Why did he tell his colleagues between February and December 2019 that he had been assaulted if he hadn’t been? Why did he allow some of them to dissuade him from laying a charge with the police against the JP? Is Wille the agent of lady justice in all this, or is he part of some dastardly conspiracy to suppress the truth?
It is surely unthinkable that Parker, an experienced former attorney with a criminal law practice, would depose to a false affidavit about being assaulted by the JP when he was not as it would be perjury to do so as he well knows. What possible motive could he have for such madness? It is inconceivable that he could be mistaken on the issue, as Le Grange has correctly and very properly pointed out to the JP in his letter. His colleagues, those who are in the know, in addition to the 11 who have raised their heads above the parapet, would do well to back Le Grange up on this observation despite the JP’s hollow-sounding sabre rattling on the topic, about which Marianne Thamm has written in Daily Maverick last week.
The JP ought to know that a decision to recuse is that of the judge concerned and no-one else. He ought to be aware that those judges who regard themselves in honour bound to so recuse themselves from sharing a bench with Parker are both obliged to say so and are serving the proper administration of justice by giving the JP notice of their position in advance of any possible allocation of cases involving them and Parker sitting together as judges. If the JP’s “cautioning version” of the alleged assault is false, none of them will sit with him either, if he ventures into court again in the future, which is not his habit.
As a serial offender against the rule that judges ought not to bring the proper administration of justice into disrepute, it is rich for Hlophe to accuse those who have quite correctly informed him of their position in relation to Parker of what he wrongly perceives to be an infraction of the rules. His response to their most proper stance smacks of browbeating of the most abusive kind.
That Parker and Hlophe are both strangers to being unswervingly truthful is a matter of public record.
In Parker’s case: It is clear that he kept from the JSC his firm’s trust account deficit when he was interviewed for possible elevation from the ranks of attorneys to the WCHC. The forms he filled in are silent on the matter. Yet, he knew about the deficit, according to the WhatsApp records his brother (and partner in the firm), has filed and according to the latter’s affidavit in the pending WCHC proceedings against the firm.
It matters not whether Parker was the thief of the trust money, as a partner in the firm, he is jointly and severally liable to repay the stolen money and he knows that this is the legal position. He was bound to make a full disclosure of it which he did not do. He is accordingly both unfit for judicial office and vulnerable to manipulation by the wicked.
As for Hlophe: Years ago, he was irritated by a young Afrikaans-speaking attorney whom he perceived to have been giving a green acting judge a hard time. The JP, in a fit of naked racism, called the young attorney a piece of white shit and told him to go back to Holland.
When the JSC was supposed to deal with this outrage, the JP denied having uttered the words, a denial so false that not even a gullible SABC studio audience in a subsequent debate on the matter believed him. The JSC eventually found an imaginative way to sweep the matter under the copious carpet it keeps for this purpose.
The JP also ducked questions about being a tax-evader and later proudly announced that he had been given amnesty by SARS, apparently oblivious to the fact that only wrongdoers receive amnesty. The JSC, as usual, limply accepted his brazen explanation. No Al Capone option there then.
In another atrocious incident, Hlophe was the guest of Norman Arendse SC at the cricket at Newlands. During conversation, Hlophe improperly revealed that he had allocated a pending matter, in which Arendse was to appear, to Judge Wilfred Thring for hearing so that “he can fuck it up and you [Arendse] can get the matter fixed on appeal”. Thring’s findings in the matter were in fact upheld on appeal and Arendse’s complaint about the exchange also was swept under the JSC’s carpet due to the JP’s false denial about the incident.
So thick is the Teflon on the JP’s back that, with complete impunity, he was able to admit to receiving R2,500 per month in fees for moonlighting for a frequent litigant in his division without any permission to do so. Nobody could give him permission to do what was inherently improper, but the JSC let him get away with it.
Despite the obvious conflict of interests involved, he gave his moonlight “employer” leave to sue his colleague Judge Siraj Desai for defamation, a case later withdrawn.
The JP has also famously, but questionably, denied his attempt to defeat the ends of justice in the Constitutional Court to protect Jacob Zuma, a matter still pending before the JSC after more than a decade. He was also the author of a “report on racism”, which was found to have been refuted by those whom he falsely accused of racism.
All this from a man who now has the temerity to accuse the brightest and best of his judges of bringing the administration of justice in the WCHC into disrepute!
With only two people in the room and both now denying that any assault took place, those colleagues who saw and heard from Parker in the aftermath of his being “cautioned” by the JP are in honour bound to come forward on oath and make their observations known to the JSC, Wille especially so.
Those judges who have been courageous enough to speak up publicly should not be left hanging out to dry in the blighted wilderness that the WCHC is in danger of becoming. Hlophe’s attack on them is baseless and completely offside; his bluster and bullying has a cause. He is obviously feeling the heat, as he should be. A court as divided as the WCHC currently clearly cannot function optimally in the delivery of fair hearings to litigants, a right guaranteed in the Bill of Rights. Litigators with concerns about the allocation of cases must feel that they are stuck in a minefield in the circumstances that currently pertain.
The inquisitors to be appointed to deal with the matters could call on Parker to confirm on oath what he is now saying in public about the incident and to explain the nature and inwardness of the “safekeeping” job he gave to Wille.
Clearly, it is now incumbent upon any interested party or the DJP herself to add a complaint of perjury against the JP to the complaints the DJP has already made. A complaint against Parker is overdue. The DJP’s counsel, given the material at his disposal, must be keenly anticipating the prospect of cross-examining both the JP and Parker.
The person chairing the inquisitorial process will have to give serious consideration to allowing cross-examination as the mutually contradictory versions will need to be properly tested in order to determine the facts. Cross-examination is still the best means of arriving at the truth when allegations of fact are in dispute between parties. Of course, the probabilities (legalese for common sense), point inexorably to one side.
Of course, it is also possible that both the JP and Parker will tender their resignations as judges in the light of the developments now unfolding, but please, don’t hold your breath for that.
The JP has repeatedly made a mockery of our constitutional democracy under the rule of law in which equality before the law is guaranteed to all. He has a well-established and on-going basis for believing that the JSC treats him as royal game and that he is free to do as he pleases, and then lie his way out of any tight corner in which he is placed. That the prima facie lying is on oath is apparently of no consequence to him, as the record so far reveals, is shockingly inappropriate in any judicial officer worthy of the name.
Swift and decisive action is needed – the matter is a test of the efficacy of the disciplinary processes currently in place for our judiciary. The probity of the WCHC is at stake. Pray that the test is passed with flying colours. DM
Full disclosure: Paul Hoffman has served as an acting judge in the Western Cape High Court at the invitation of three successive Judges President (including Hlophe), and completed his pupillage under Judge Thring in 1980 when they were both members of the Cape Bar.