Lawyers are argumentative, combative, abrasive.
In private, at the dinner table, they tell each other to “shut up” all the time.
The hearings at the Zondo Commission on 23 March 2021 were not private, nor a dinner table setting.
A sitting Cabinet minister, Pravin Gordhan, was giving evidence at one of the most crucial legal processes in our country’s history, the “Judicial Commission of Enquiry to Inquire into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State” (to use its formal title).
He was being led by his counsel, Michelle le Roux, a formidable advocate who has been recommended to the judge president for the status of senior counsel by the Johannesburg Society of Advocates.
She was asking Mr Gordhan how it feels to be labelled a “racist”, given his struggle credentials which include torture, detention and a history in uMkhonto weSizwe.
She was interrupted by advocate Dali Mpofu SC, himself a Silk who has enjoyed a stellar career at the Bar and who serves as one of the representatives of the General Council of the Bar of South Africa to the Judicial Service Commission, which recommends the appointment of judges and which is responsible for disciplining them if needs be.
What followed was an extraordinary series of exchanges…
Mr Gordhan asked to briefly interject, ostensibly to attempt to shorten proceedings.
Mr Mpofu objects to this.
Ms Le Roux interrupts him saying “Can I just briefly explain the question?”
To which, importantly, the Deputy Chief Justice says “Okay”.
Mr Mpofu was obviously irritated and says “Chair, I am on the floor. Really, I can’t stand this. This cannot be happening for the third time. Miss Le Roux must shut up when I am speaking.”
Audible gasps, even shouts, can be clearly heard on the video footage which pans to Mr Gordhan who is open-mouthed. He says, “Yoh, yoh,” in response to Mr Mpofu’s outburst.
Mr Mpofu turns on him “You too, you shut up”.
This is when Commission Chair Deputy Chief Justice Raymond Zondo attempts to reassert control of the room and asks Mr Mpofu to sit down.
Mr Mpofu challenges him: “But why must I sit down?”
Zondo DCJ: “Because I am in charge here and I am saying sit down”.
Mr Mpofu then engages in a heated exchange with the DCJ saying, “Maybe we should leave…”
The DCJ cuts him off and tells him he first wants to hear Ms Le Roux’s explanation of the question she is posing to her witness and then will let Mr Mpofu object. “No, no,” says Mr Mpofu.
As one wit has described it: “talk about putting the ‘cross’ back in cross-examination!”
Besides the gripping television, is this outburst important?
Why? Because our courts and our judicial officers are under attack, particularly by the RET faction of the ANC and by the EFF, of which Mr Mpofu is, of course, a member and former chairperson.
Lawyers interrupt each other in oral argument all the time — it is part of what lawyers do. Objections and counter objections are common in court and a good judicial officer knows how to control it to avoid the proceedings coming adrift.
What we saw yesterday was not that: telling a fellow advocate to “shut up”, telling a witness to “shut up”, and threatening to walk out of legal proceedings is not normal. And it is not good.
It was, in my view, a failure by Mr Mpofu to abide by the Code of Conduct for All Legal Practitioners prescribed by the Legal Practice Council and which came into effect in March 2019. Part VI of the Code of Conduct deals with the conduct of legal practitioners in appearances in court and before any tribunal which performs a judicial, quasi-judicial or administrative function.
Article 61 is headed “Professional Etiquette”. It requires a legal practitioner to “deal with the judicial officer… and all other persons in court with civility and respect”. Further, it obliges legal practitioners to “not allow any feelings of ill-will between… legal practitioners to interfere with the civil and professional conduct of the matter” and to “not allow any antipathy that might exist between the legal practitioner and the opposing legal practitioners personally to intrude upon the conduct of the matter”.
But perhaps more important than violations of the so-called “black letter of the law” are what these violations signal politically.
Be under no illusion…
Supporters of Mr Mpofu are quick to say “but she interrupted his objection” and, my personal favourite, “she was cheeky”. Others, including me, have pointed out the misogyny of Mr Mpofu’s insistence that Ms Le Roux shut up. Such is the tedium of taking sides on a personal spat between advocates.
But the real signal that went out is not that it is open season on female advocates, or on witnesses in a Judicial Commission of Inquiry or that the deputy chief justice himself can be told “maybe we should leave” because the advocate does not like to be told to sit down, but that it is open season on the judiciary and on the judicial process itself.
This is not new. It is part of a rising tide, a pattern of disrespect of courts and indeed of our very constitutional fabric. We have seen it in the grumblings about the repeated court rulings on the conduct of the Public Protector, and, most prominently, in former president Jacob Zuma’s disregard for the Zondo Commission resulting in the 25 March Constitutional Court hearing on his alleged contempt of court.
Those who would Defend Our Democracy (the rallying cry of those opposing these attacks) would do well to pay attention to the spat that took place yesterday. It was a rallying cry all of its own. DM
Justine Limpitlaw is a legal consultant and is a Visiting Adjunct Professor at the LINK Centre, University of the Witwatersrand.