OP-ED

Dali Mpofu’s disrespectful ‘shut up’ that reverberated across the nation

Advocate Dali Mpofu. (Photo: Gallo Images / The Times / Alon Skuy)

The real signal that went out in Dali Mpofu’s ‘shut up’ outburst at the Zondo Commission 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.

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?

It is.

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.

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All Comments 26

  • it is great that Mpofu is given
    rope! He clearly cannot constrain himself any better than his client would have embarrassed himself in direct interchange with Gordhan.

    Does Mpofu have ANY other clients than the EFF and Zuptas? Who would appoint him and perhaps interestingly : who pays him?

  • Nothing but a low life whose true colours came out. Let’s not forget he is a leader of the eff ie racist, bullying, intolerant and above all, wants to impose a Zimbabwe/Venezuela on SA. The company he keeps and those he enthusiastically defends says it all about this vile individual and his ilk.

  • Absolutely unacceptable conduct from one of the senior members of our Bar. Hopefully some form of sanction from the Johannesburg Society of Advocates follows.

    • Methinks so too … unfortunately, otherwise he would have been sanctioned ages ago? This has been the case since his days at the SABC.

  • I see Mdonsela also weighed in and she says Mpofu should not be singled out. I tend to agree with her however the problem is far more extensive than just Mpofu and the Zondo commission. The arrogance of silks is in part why state capture happened. They have played a big role in state capture.

  • I’ve always thought that he’s overrated, has “connections” and that he is a chauvinist. Now I believe that he has low dignity and that he is not fit and proper. I bet he gets not even a slap on the wrist for this disgraceful hissyfit. He brings the juristic organs to which he belongs into disrepute.

    • And what if he were to be charged with bringing “the juristic organs to which he belongs into disrepute”. More years of waiting and waiting for some definitive ruling. Add this one to the seemingly endless list of round and round the mulberry bush…

  • My sympathy lies with Tom Moyane who was paying for this blustering, pricklish and ineffectual waste of an hour of the commission’s time.

  • History is littered with useful idiots and fools like Mpofu, who bat for the wrong side e.g. Albert Speer etc. He sells his undoubted “talents” to the most despicable, treasonous and evil thieves, who have all but bankrupted SA. His conduct goes beyond professionalism and is unconscionable!

    • The word talent, even in quotes, should not be used to describe Dali. When in court, Dali always seems unprepared and talks in circles. His strategy seems to be to bully and confuse everyone and hope the cards fall in place for him. Astonishing how his incompetence gets rewarded in this country

  • I raised an eyebrow manually at the comments: some think Dali took the silk in a BEE deal. There’s a Zimbabwe narrative to comments on multiple stories with nary a “When we” starting the sentences and expectations lawyers pay to raise standards that make them look bad. It must be Thursday.

    • P.s. Thank you for an insightful article. I’ve stopped being shocked thinking that Adv. Mpofu told the DCJ to shut up, not noticing it was the erstwhile Minister he was sniping. Judges have a veritable arsenal to ensure good behaviour in their domains, so I wouldn’t fear for them

  • If you have no case, or if your case is too weak to stand up in court, then become abusive and aggressive. Isn’t that standard practice for attorneys in court proceedings? The weaker your case to more abusive your behaviour and arguments have to be.