Brother testifies against judge facing impeachment

An expected week-long Judicial Conduct Tribunal hearing for Judge Mushtak Parker concluded after one day with the matter being postponed to 29 April for closing arguments. 

On Monday, the Tribunal - chaired by retired Judge President Bernard Ngoepe - wrapped up witness testimonies in a marathon session that saw all 10 witnesses testify in a single day - these included eight current and former Judges of the Western Cape High Court, advocate Andrew Breytenbach and Irfaan Parker (Judge Parker’s brother and former law firm partner). 

In a surprise turn during the afternoon, Irfaan Parker testified against his brother and through counsel requested for his face not to be shown during the virtual proceedings, “due to the sensitivity of the matter”. 

Counsel for (Mushtak) Parker, William King, said it came as a surprise that Irfaan was called as a witness as they were “unaware” he was on the list as a witness and Mushtak submitted that his brother “should be disclosed”. 

Irfaan’s brief testimony, which was to confirm the details of his affidavit, went ahead with his face being shown during the virtual hearing. 

In an extract from his affidavit, Irfaan stated: “Like I, the Applicant knows what led to the shortfall in the trust account. For completeness sake I will repeat it. The First Respondent's (Mushtak’s) inability to generate sufficient fees to cover his portion of the expenses of the firm led to his dishonest misappropriation of trust funds.”

There are two complaints against judge Parker - one from the ten fellow judges and another from the Cape Bar Council, both relating to dishonesty. 

In the first complaint, Parker is accused of the cardinal sin of lying under oath by first deposing to an affidavit saying that he was physically assaulted by then Judge President John Hlophe and then, a year later, retracting that version in a contradictory affidavit.

The affidavit detailed an assault that allegedly occurred in chambers where Hlophe is alleged to have assaulted Parker causing him injury to his back. The assault is said to have been occasioned by Parker’s alleged inappropriate advances made to and accusations of trying to have sexual relations with Hlophe’s then-wife, Judge Gayaat Salie-Hlophe. 

In his affidavit, judge Owen Rogers stated: “If there was no assault, there is evidence from multiple sources that Judge Parker misled (deputy judge president Patricia) Goliath, (judge Derek) Wille, and a number of other judges of this division into believing that there was an assault, resulting in the making of a damaging claim by Goliath against the Judge President. 

“It is honesty and integrity and not the rights and wrongs of a supposed assault or sexual misconduct, which are at stake,” said Rogers.

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. 

The omission, according to the Legal Practice Council, was where Parker possibly misused 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.

Former LPC member, Andrew Breytenbach SC, in his affidavit stated: “One is not dealing here with trust deficits arising from simple accounting errors. There appears to be a continuous pattern of concealing trust deficits, by keeping a separate list of the trust deficits which demonstrates an element of deceit, inimical to the honour associated with the profession of an attorney. The attorney’s profession demands of its members complete honesty, reliability and integrity.”   

The outcomes of the Tribunal hearing could spell the impeachment of Parker if he is found guilty.