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Dali Mpofu’s forays into the swamps of invective play fast and loose with legal ethics

Dali Mpofu’s forays into the swamps of invective play fast and loose with legal ethics
Advocate Dali Mpofu in KwaZulu-Natal on 4 July 2021. (Photo: Leila Dougan)

The judicialisation of the parliamentary inquiry into the impeachment of suspended Public Protector Busisiwe Mkhwebane has allowed Mkhwebane and her lawyers to engage in ever more farcical attempts to delay, and ultimately to delegitimise, the entire process.

Last week, advocate Dali Mpofu abandoned the parliamentary inquiry into the impeachment of his client, suspended Public Protector Busisiwe Mkhwebane, after the parliamentary committee considering the matter rejected an application to adjourn its work pending, so he claimed, yet another high court challenge to the proceedings.

Mpofu claimed, without a factual or legal basis to do so, that the committee “as it is currently constituted is completely illegal” and that he is not able “to take part in further illegal activities”.

Earlier Mpofu had told the committee that “in appropriate circumstances… an authority should halt its actions when it is aware review proceedings are to be instituted against it. Failure to do so may render the official concerned liable for contempt of court.”

The committee rejected this argument, which is not surprising given that no such rule exists in our law. The committee previously also rejected applications for the recusal of its chairperson and of the evidence leader, which was also not surprising given the fact that the claims lacked a proper factual basis.

But these applications also illustrate why the judicialisation of the parliamentary inquiry has contributed to questionable behaviour by Mkhwebane’s legal representatives. What has in effect happened is that Mkhwebane and her legal representatives have insisted that the members of the parliamentary committee (excluding MPs from the EFF and the UDM who have been energetically partisan throughout) are held to the same standards of independence and impartiality expected from judges, but that they themselves should not be held to any standard, and surely not to the standard expected from any legal practitioner appearing in a court of law.

The problem started when the Constitutional Court ruled earlier this year in Speaker of the National Assembly v Public Protector and Others that Chapter 9 office bearers facing an impeachment inquiry in Parliament were entitled to “full legal representation” during the  inquiry, as this was required to ensure that the procedure was reasonable and fair.

Because Parliament interpreted this judgment as requiring the kind of legal representation enjoyed by a litigant in court proceedings, many weeks were wasted on recusal applications and on the cross-examination of witnesses that seemed to have little bearing on the issues the committee was called upon to decide.

When the chairperson attempted to curtail Mpofu’s forays into a swamp of irrelevancy and invective, he complained bitterly of unfair treatment, and accused the chairperson of bias – something he would almost certainly not have done in a court of law.

Until recently, Mkhwebane and her lawyers effectively used the threat of further court applications (and thus further possible delays) to gain a tactical and political advantage (which happens to align with the political or financial interests of the EFF) and to escape any censure or consequences for Mr Mpofu’s theatrics.

Read more in Daily Maverick: “High court was guilty of judicial overreach when overturning Ramaphosa’s suspension of Public Protector

When his luck finally ran out last week, and his application for an indefinite postponement of the committee’s work failed, Mpofu abandoned the inquiry.

The inquiry, which continues despite the walkout, heard earlier this week that Mr Mpofu had been paid more than R12-million in legal fees by the Office of the Public Protector. (It is not clear whether the walkout last week was linked to the evidence presented this week.)

Whatever the reasons for the walkout might have been, it is encouraging that the chairperson of the committee decided to proceed despite Mpofu’s (as yet not fully explained) absence. The decision has partly been justified based on the Supreme Court of Appeal (SCA) judgment in Take & Save Trading CC and Others v The Standard Bank of SA Ltd, in which that court cautioned that fairness of court proceedings required the presiding officer to “control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence”.

The SCA also warned that:

“One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented.

“Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.”

It is unclear whether Mr Mpofu will return to represent his client before the committee (the Public Protector’s explanations in this regard have been confusing and vague), but if he does return, it will be interesting to see whether he continues his attempts to delay and discredit the work done by the committee.

To understand why these tactics may present ethical challenges, and why the chairperson has every right to nip them in the bud, one needs to turn to the Code of conduct for legal practitioners, candidate legal practitioners and juristic entities. The code imposes onerous ethical duties on all legal practitioners to ensure the legal profession is not brought into disrepute.

While section 14.4 of the code makes clear that it is not exhaustive of the ethical professional responsibilities of counsel, it does provide important guidance on how counsel should behave.

It might come as a surprise to members of the public who watch live-streamed broadcasts of court and other quasi-legal proceedings, but legal practitioners are not permitted to make obviously false factual claims to advance the interest of their clients, nor are they permitted to lie about the law.

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Thus, section 22.8 of the code (which applies to advocates) states that while counsel may rely on the facts given to them by the instructing attorney or client when they draft legal papers, they may not “gratuitously disparage, defame or otherwise use invective”, or “recklessly make averments or allegations unsubstantiated by the information given” to them.

The sections of the code that apply to all legal practitioners appearing before courts and other tribunals contain even more detailed provisions that, in theory, would prevent Mr Mpofu or any other legal practitioner from misleading courts or other tribunals, by making up facts or inventing legal rules.

Read more in Daily Maverick: “It can be dangerous when national security is used as a cover to dodge accountability

Thus section 60.3 of the code states that “a legal practitioner shall not put to a witness an allegation of fact if the legal practitioner has no reasonable expectation that admissible evidence, whether oral or otherwise, is available to be adduced to substantiate the allegation of fact”.

Section 61.1 further requires legal practitioners to “take all reasonable steps to avoid, directly or indirectly, misleading a court or a tribunal on any matter of fact or question of law”. This rule is augmented by section 61.9 of the code which prohibits legal practitioners from relying “on any statement made in evidence which he or she knows to be incorrect or false”.

Other code breaches

While I leave it to readers to draw their own conclusions on whether Mr Mpofu acted in breach of one or more of these provisions while representing Ms Mkhwebane before the parliamentary inquiry, I would suggest that other provisions of the code have clearly been breached.

Most notably, section 62.1 of the code requires a legal practitioner to “guard against becoming personally, as distinct from professionally, associated with the interests of the client”. This ship has obviously sailed, most notably because Mr Mpofu uses political and legal arguments interchangeably, creating the impression that he is representing the Public Protector in defence of his political views and of the political party of which he is a senior member.

This has been exacerbated by the personal attacks launched against witnesses and members of the committee who disagreed with him.

Section 64.1 further prohibits legal practitioners from abusing “or (to) permit abuse of the process of court or tribunal” and requires them to “act in a manner that shall promote and advance efficacy of the legal process”, while section 64.2 prohibits legal practitioners from deliberately protracting “the duration of a case before a court or tribunal”. I already explained above why I believe these provisions are applicable to this case.

Read more in Daily Maverick: “Questionable, sometimes outright dishonest conduct by handful of lawyers a worrying trend

In theory, section 14.9 of the code imposes a specific duty on counsel to report unprofessional conduct by other counsel. In theory, the Legal Practice Council (LPC) should also enforce the provisions of the code of conduct. But there seems to be little appetite to do so. This may be partly due to the tendency of members of the same profession to close ranks, and not to upset the apple cart. It may also be costly to break ranks, given how profitable it has become for counsel to represent state institutions.

But there is clearly another problem: the failure of the LPC to enforce the code in a principled and vigorous manner.

One example is the failure of the LPC to act against dodgy lawyer and lottery crook Lesley Ramulifho for fabricated invoices in a spurious court challenge he brought against the news website GroundUp. Perhaps the fact that a new board for the LPC has recently been appointed may help to spur the LPC into action.

But, for now, I am not holding my breath. DM



Comments - Please in order to comment.

  • Paul Savage says:

    Thanks for the well reasoned and informative article Prof. As I understand it, members of the public are allowed to make a complaint to the LPC which will then appoint an investigating committee to look into the merits of the complaint. Surely it would a good exercise to have your students, as part of their study program, prepare a well reasoned complaint against Dali Mpofu, and then submit that to the LPC for adjudication? You and your students would be doing us all a great service!

  • Beyond Fedup says:

    Mpofu is nothing but a clown and a buffoon. He bullies, insults, intimidates etc in order to overwhelm his opponents with his obnoxious tactics and his vile manner, and throws his toys out of the cot in a hissy fit when the opponents stand up to him, crying foul, illegitimacy etc. He is a total disgrace and embarrassment to the profession. All he does is defend the most corrupt and vile REThieves and laughs all the way to the bank on mostly taxpayer’s money.

  • Dennis Bailey says:

    What’s the point of the LPC? Who pays for it? Especially as it is necessary to spur it to do anything about Mpofu? Waiting for legal processes has become synonymous with

  • Manfred Hasewinkel says:

    It is about time that the actions of Dali Mpofu are debated. Contrary to what Mpofu & his supportes believe Mpofu’s stance has nothing to do with the ‘Africanization’ of law but is just plain bullying.

  • Sydney Kaye says:

    I wonder if persuading a client to launch actions he knows to be meritless but earn him repeatedly large fees paid for by the client’s employer, a portion of which he may very well kick back to the client, is ethical.
    I also wonder why the courts, who must be wise to this don’t put a stop to it be issuing large fines to the lawyer.

    • Rob vZ says:

      Not sure about the truth of kickbacks, but when the fees are paid by tax payers, there is every incentive for government employees in the dock to delay and waste time indefinitely. Dali Mpofu is the most high profile example of this abuse of public funds, to the point that I suspect his business model is “delay for maximum profit”.

  • Craig McLachlan says:

    I believe the third last paragraph points out the primary problem with the South African Legal Profession currently. The very body created to oversight and enforce ethical and professional behavior by lawyers and advocates itself appears to not behave ethically and professionally!

  • Cunningham Ngcukana says:

    The writer is putting very important legal precepts but one doubts whether he correctly applies them. He says the process is not a quasi – judicial process. Any impeachment literature will tell him that it actually is a quasi – judicial process because it has a determination to make. That determination is the fitness of the Public Protector to hold office. If ethics do not apply to the MPs and the chairperson, because they are MPs then it becomes problematic to ask the defence about ethics if those are not bound by the same ethics but different ethics. Dyantyi and Nqola have disqualified themselves as neutral people presiding over a process to determine the fitness of the Public Protector by making and commenting to the media about the conduct of the defence of the Public Protector and the Public Protector herself. It would be untenable for any judge to comment in the media about the conduct of the defence lawyer and the accused. Such a judge would disqualify himself or herself to preside over the trial. The argument would be that they are appointed public representatives of the ANC and as such they have a right to comment but on the other side the defence and the Public Protector have no rights including of walking out if they feel a kangaroo court has now developed within the process.
    The writer does not even raise or comment on the issues that the defence lawyer raised on Dyantyi including at having publicly commented that the public protector must be removed.

    • Manfred Hasewinkel says:

      You got it wrong, the objective of the parliamentary inquiry is to find if there are sufficient grounds to remove Mkhwebane from the office of Public Protector.

    • Clyde Smith says:

      The writer is Pierre de Vos – the Claude Leon Foundation Chair in Constitutional Governance and who teaches in the area of Constitutional Law at UCT – I would be more than a bit surprised if he did not know how to apply legal precepts.

  • jeyezed says:

    Useful and helpful contribution.

  • Caroline White says:

    I wonder why Dali Mpofu keeps taking on clients whose actions are indefensible…. He is not acting as a good advocate should – enabling the court to arrive at a fair judgement.

  • virginia crawford says:

    There’s a Code of Conduct? Wow! Obviously it’s easy to ignore given the antics and delaying tactics we see in our courts. The LPC: I would like to read more about it and a profile of the people running it. Although, it’s not really running is it? Dawdling, limping or just not interested?

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