Last week was a show, one to be remembered by SA as book-ended by extravagant demonstrations of lawlessness. Former president Jacob Zuma, a man not only once entrusted with the highest powers our constitution can bestow but the person who actually signed the state capture inquiry into being, simply absconded from the commission, underlining that while he envisaged it would do for the “little people”, it simply didn’t do for him.
That bit of theatre may have overshadowed slightly the week’s curtain-raiser: a nationally televised interview with the judge president of the Western Cape, John Hlophe, in which he got to malign SA’s chief justice, Mogoeng Mogoeng, accusing him, together with deputy Western Cape judge president Patricia Goliath, of having fabricated a complaint against him.
This was a show gifted to us by our former president and the man who, by all accounts, he would have made our chief justice but for the pernickety Constitutional Court, which took umbrage at the idea that Hlophe might approach two of their number asking that they helpfully intercede for then soon-to-be president Zuma in a particular court case. No doubt, Hlophe’s attack on Mogoeng is particularly pointed: after all, Mogoeng occupies the position once all but his.
Still, the show goes on. The complaint Mogoeng and Goliath are alleged by Hlophe to have fabricated relates to Mushtak Parker, another judge of the Western Cape High Court. For well near a year Parker reported to several judicial colleagues, and in fact recounted in an affidavit, that Hlophe had accused him of being sexually inappropriate towards Hlophe’s wife, and that he had been physically assaulted by Hlophe in his chambers.
That alleged assault forms part of the complaint Goliath made against Hlophe earlier in 2020. However, when Hlophe vociferously denied such attack, Parker curiously reversed course and denied the assault had ever taken place. Several colleagues to whom he had given his original account were then left in a quandary: either he was lying when he told them of the assault or he was lying when he denied the assault took place. Either way, it could hardly fit with the requirements of judicial office, so his colleagues complained about him to the Judicial Service Commission (JSC).
There is another complaint against Parker before the JSC: that prior to him assuming judicial office, he was party to abuse of trust funds at his former law firm. And yes, dear reader, I’m sorry to report, if all of this is news to you, that these aren’t really just characters in some fictional show. They’re real-life judges of the Western Cape High Court.
And while we’re asides: it’s worth noting that Parker’s contemporaneous accounts to other judges, and his affidavit preparation, quite definitively put the lie to any idea that Mogoeng could have instigated, or that he and Goliath together fabricated the assault.
But back to the main stage: the JSC has judged those complaints against Parker to be of such gravity that if proven would warrant impeachment. It has also, as authorised by law, recommended that the president suspend Parker pending final determination of the complaints. This the president has done, and the decision has been communicated to both Hlophe and Parker. And yet ... according to the high court’s pretrial roll, Parker appears to be still allocated new matters for hearing by Hlophe.
It is all quite extraordinary. Perhaps the thinking again goes that only we “little people” are bound by constitutionally and legally authorised presidential orders. Not judges who actually apply the law.
Diverting though the show may be, it is also potentially heart-stopping in the worst kind of way — for our country and constitution and for the legitimacy and authority we afford our courts and the law.
• Fritz, a public interest lawyer, is CEO of Freedom Under Law.
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