Is Western Cape Judge President John Hlophe above the law? It’s a question raised by the Daily Maverick’s Marianne Thamm, who questions the apparent paralysis of the JSC, which has delayed for more than a decade dealing with myriad serious complaints against him.

The question arises at a time when Hlophe has allegedly shown contempt for the law – and defiance of the JSC – by allowing Western Cape Judge Mushtak Parker, suspended pending the findings of a Judicial Conduct Tribunal into gross misconduct, to continue to work.

The DM’s questions to authorities regarding this matter have been met with vague responses. The DM report notes that on 14 October, the JSC announced it had advised President Cyril Ramaphosa to suspend Parker pending the findings of a Judicial Conduct Tribunal into gross misconduct.

Parker’s suspension was on condition that he finalised part-heard and reserved judgments, and it was to endure until the complaints were finalised by the tribunal.

He was to be allocated no new matters while on suspension. But Hlophe has allowed Parker to continue to serve in the division.

As late as Friday 20 November, Parker was allocated by Hlophe the criminal pretrial conference roll, an action that legal experts say will open any and all of Parker’s decisions to legal challenge as they would be ‘incompetent in law’.

Nicole Fritz, of Freedom Under Law, said that the NGO had confirmed that Parker had been informed of his suspension.

Officialdom appears reluctant to deal with the issue. JSC spokesperson CP Fourie, responding to a question from DM, reportedly directed its queries to Hlophe himself or judiciary spokesperson Nathi Mncube. Mncube, notes the DM, spun what it describes as 'a Trumpian justification' for Parker being at work on Friday, offering that ‘the court rolls are prepared at the beginning of term. That would have been long before the suspension was an issue'.

Mncube suggested the DM should ‘check if he has heard any new matter since his suspension’.

Thamm says the DM forwarded evidence to Mncube of the 20 November court roll, which clearly shows Parker presided over the criminal pretrial conference roll. These are all new matters.

Parker is the only person standing between Hlophe facing a tribunal, a decision by Chief Justice Mogoeng Mogoeng which Hlophe has appealed.

As is well known Parker has been accused by 10 colleagues in the division of providing conflicting versions of an alleged assault on him by Hlophe, in 2019. This rendering of conflicting versions may have made Parker guilty ‘of gross misconduct’ and the tribunal will deliberate on all the evidence.

Thamm, in her DM report, says Hlophe’s apparent ignoring of the JSC and the suspension of Parker by the President, mimics the behaviour of former president Jacob Zuma and his public display of contempt for the law and the Commission of Inquiry into State Capture last week.

The report says Hlophe has been on a fightback campaign, giving exclusive press interviews where he has accused the Chief Justice, as well as the Deputy Judge President of the Western Cape of perjury.

Writes Thamm: ‘It is hard to think of a more grave set of circumstances that undermine the South African judiciary at a time when it will be called upon to act with independence and impartiality in the litany of cases that are about to face trial. Is Hlophe above the law and untouchable, just like Zuma? It certainly appears so…’.

Full Daily Maverick report