In an unprecedented move, High Court Judge Andre Le Grange has written to Western Cape Judge President John Hlophe setting out that ‘based on deep moral and ethical concern for the judiciary’ he could no longer keep quiet about the ‘climate of untruthfulness’ in the division.

“The prevailing climate of untruthfulness makes it simply untenable to dispense justice in accordance with my oath of office.” Judge Andre Le Grange, 11 March 2020

In a letter, dated 11 March 2020, Western Cape High Court Judge Andre Le Grange suggests that Western Cape Judge President John Hlophe was less than honest when he denied assaulting Judge Mushtak Parker in chambers and that, in fact, Parker had “told me in person that you viciously pushed him against a cupboard in his chambers”.

Le Grange also revealed that Parker had informed him that “some fellow judges persuaded him not to file a criminal complaint against you” and that “the sworn statement [Parker had made] was given to Judge Derek Wille for safekeeping”.

“A few days later, Judge Wille showed me the sworn statement as proof that he holds it for safekeeping,” said Le Grange.

Le Grange said that at the time of the alleged assault, he had informed both judges (Parker and Wille) of their “obligation to bring this matter to the attention of the Chief Justice and to report it to the Judicial Conduct Committee (JCC) as soon as possible.”

His advice, however, he said “was regrettably ignored.”

Le Grange’s unprecedented stand comes after months of deep tension, and fear and loathing after Deputy Judge President Patricia Goliath lodged a 14-page complaint with the Judicial Services Commission (JSC) accusing Hlophe not only of trying to rig the bench, but also of assaulting Parker in his chambers after an altercation about Hlophe’s wife, Judge Gayaat Salie-Hlophe.

Le Grange’s letter has been circulated to most judges in the division.

Parker has also subsequently been implicated in the misappropriation of R8-million from the trust fund of a firm he founded. The Legal Practice Council filed an application for a curator to be appointed to administer the accounts of Parker and Khan Incorporated, pending an application to strike off two directors, Abdurahman Khan and Irfan Kassiem Parker, from the roll.

Voluminous papers in the matter, enrolled on 25 January 2020 and set down to be heard in the Western Cape High Court on 21 February, subsequently “went missing”. The matter disappeared from the court roll and has now been postponed to April.

In an affidavit responding to the Legal Practice Council application for the strike-off, Irfan Parker revealed that his brother Mushtak, a former director of the firm until he resigned after being appointed to the Bench in 2017, had been aware of the shortfall. Parker did not disclose this, as required, to the JSC during his interview for the bench.

Irfaan Parker added: “I raised the issue with both of my fellow directors [Khan and Mushtak Parker] directly and in person until Mushtak left the firm, and thereafter during the latter part of 2016, by way of WhatsApp communications.”

Hlophe, in his over 100-page affidavit to the JSC in response to Goliath’s complaint, denied that he assaulted Parker, saying that he had “cautioned” Parker in his chambers with regard to a matter involving his wife Judge Gayaat Salie-Hlophe and Parker.

Hlophe said that as “an African from KwaZulu-Natal and married to a Muslim woman” he had cautioned Parker “against being perceived to be inappropriate in his interaction with women colleagues”.

In his letter to Hlophe, Le Grange said that it was “inconceivable that Judge Parker, with vast experience of criminal law as an attorney, could be mistaken on that issue. Yet your statement is in total contradiction to what Judge Parker has told me (and many other colleagues) about what transpired in his chambers.

“More alarming, however, is the fact that in your statement denying the attack it has been recorded that ‘the Judge concerned has been shown this portion of the affidavit relating to him and agrees with this version’.”

In other words, Parker had agreed with Hlophe’s version that no assault had occurred, thus appearing to “recant” that he had been assaulted by his boss.

“It follows that the two versions of Judge Mushtak Parker are diametrically opposed to each other. Common sense dictates that both of them cannot be the truth. It is here that my ethical dilemma arises when called upon to preside in a matter with Judge Mushtak Parker.

“The prevailing climate of untruthfulness makes it simply untenable to dispense justice in accordance with my oath of office.”

Matters came to a head when Le Grange refused to sit with Parker in an appeal matter to be heard on 6 March 2020 in the division. Le Grange had requested that the matter be allocated to other judges.

“It is unclear who brought the issue to your attention and what was said, and I, therefore, deem it prudent to place the following on record since you did not call on me for any explanation before requesting the file be returned for reallocation,” wrote Le Grange.

Le Grange said he had “gone to Mushtak Parker to inform him that I intend to recuse myself and that I will provide written reasons for such recusal”.

“Coming from the ranks of the formerly oppressed in this country, I am acutely aware of the need to uphold the respect and dignity of the Bench.”

He added that his objection to sitting with Parker was not “borne out of malice nor is it premised upon vindictiveness. My objection is based on a deep moral and ethical concern for the judiciary.”

Le Grange highlighted the complaint to the JSC by Deputy Judge President Goliath and that in his reply “under oath it has been emphatically denied that you assaulted a judge of this division”.

He wrote to Hlophe that it was not his intention to comment on the veracity of whether the assault did indeed occur, “however, the most fundamental principle in underpinning the proper discharge of judicial office, is judicial ethics.

“A judge is required to uphold the integrity and independence of the judiciary at all times. This demands adherence to the rule of law and ethical behaviour and acceptance of the principle that, although we are independent, judges are pre-eminently required to comply with the law.”

He said that society demanded of judges “to at all times behave and speak with honesty and integrity.”

Daily Maverick is attempting to get comment from Judge Hlophe.

This is a developing story. DM