Judge vs Judge: Twelfth Western Cape High Court judge refuses to preside with fellow-judge accused of lying

Judge Judy Cloete’s letter to Judge President John Hlophe setting out how presiding with Judge Mushtak Parker “would offend, not only against my oath of office, but also my personal integrity” comes a day after 10 other judges in the division collectively wrote to Hlophe with regard to the same matter.

This all comes after a rather tetchy Chief Justice Mogoeng Mogoeng, during a Covid-19 press conference on 17 March, explained that he had no legal authority to hasten any complaint being deliberated on by the Judicial Conduct Committee and that calls for him to intervene were inappropriate.

In her letter, written in response to Judge Andre le Grange’s letter to the judge president and Parker’s subsequent response that he had “misperceived” an alleged assault by Hlophe, Cloete set out how Parker had also told her he had been assaulted by his boss.

She said on 6 December 2019, during an adjournment, and while sitting with Parker in her chambers he “voluntarily disclosed to me that he was assaulted in his chambers by the judge president.”

She had had no idea of when the alleged assault had taken place [February 2019] and that she did not ask, “given that I had not in any way sought to elicit information from him”.

It was only after a letter penned by 10 judges on 16 March to Hlophe and copied to Mogeong and the JSC that she had learned of the date.

In the meantime, having had sight of Parker’s response to Le Grange, that in hindsight he had “misperceived” the alleged assault, Cloete wrote: “It would seem self-evident that either Parker was untruthful to me on 6 December 2019 in making a grave allegation against the judge president, or he is being untruthful now.”

She said that having regard to the provisions of article 16 (3) of the Judicial Code of Conduct, “I am obliged to raise the matter either with Parker or with the Judge President as the head of this Division.”

She said she was also fully aware that “this letter may be referred to the Secretariat of the JSC in order that it may be placed before the Judicial Conduct Committee. I leave it to the Judge President and or the Deputy Judge President in this regard as I do not wish in any way to appear prescriptive.”

Meanwhile, the Judicial Conduct Committee announced on 17 March 2020 that it had found, by a majority of two to one, that both Hlophe and Goliath would face an inquiry in terms of section 17 of the JSC Act.

Should the letters signed by Le Grange, Siraj Desai, Dennis Davis, Yasmin Meer, Leonard Bozalek, Ashley Binns-Ward, Elize Steyn, Pat Gamble, Robert Henney, Owen Rogers, Mark Sher and now Judy Cloete be placed before the inquiry, Hlophe will have a hard job explaining his version, which is that no assault took place.

According to Le Grange, Parker provided an affidavit, under oath, of the assault which he placed with Judge Derek Wille for safekeeping. 

The 10 other judges too wrote that it was “common knowledge that, immediately after an alleged assault in his chambers in February 2019, Parker asked Wille to take down an affidavit, which Parker there and then swore before a commissioner of oaths, the purpose of the affidavit being to support a criminal charge”.

With regard to Hlophe’s affidavit of 7 February 2020 in response to Goliath’s complaint, the judges note that “you deny that you assaulted Parker (though he is not named) and you give a description of the events in his chambers which is materially at odds with the one Parker gave under oath and subsequently recounted to several colleagues”.

Hlophe, in his affidavit, also set out that Parker had been shown part of Hlophe’s affidavit to the JSC which related to him “and agrees with it”.

“Since Parker did not subsequently refute what you said… we felt we had no choice but to conclude that he had given two materially inconsistent versions of the alleged assault, the one directly under oath, the other indirectly (in that he knew you would be incorporating his concurrence in your affidavit).” DM

This is a developing story.