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No comparison: To equate Dali Mpofu and George Bizos is truly a disgrace

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

On 9 July, after what can only be described as a crushing legal defeat in the Gauteng High Court, Ace Magashule described his counsel, Dali Mpofu SC, as being like George Bizos and that like Bizos, Mpofu represents the oppressed. It was an extraordinary claim, even for Magashule, who, with his close ‘comrade’ Carl Niehaus, is a true expert in fake claims.

Unlike the sustained nonsense generated by the Rent-seeking Everywhere Team (RET), this claim merits a response, for it seeks to draw parallels between an apartheid and the current judiciary, and thus contends that the present legal system is equally skewed against true strugglers for freedom.

Lawyers like George Bizos, Denis Kuny, Pius Langa, Zac Yacoob, Godfrey Pitje, David Soggot, Ismail Mohamed, Arthur Chaskalson and Sydney Kentridge acted for those whom the apartheid regime sought to criminalise, send to the gallows, detain and torture. Their clients were among the many who fought for a non-racial, non-sexist, democratic society. Their fight was to rid the country of oppression, corruption and rule by fiat as opposed to law.

It was invariably an uphill battle in that the majority of the judiciary at that time viewed the country in the same way as did the regime. In addition, the apartheid government had introduced a battery of laws to sustain its authoritarian rule. Undeterred, these lawyers sought to use the core principles of the then common law to confine the scope of the repressive legal system as well as embarking upon a meticulous analysis of the factual basis of the State’s case. And on occasion, before one of the minority of judges who remained custodians of law as opposed to apartheid, they were successful.

To equate their work, which was based on a commitment to core ideas of a legal system built on the rule of law, with the use of law by members of the RET faction, including Jacob Zuma, is truly an insult to this history of heroic legal work and even more to the present judiciary, which for the duration of the Zuma presidency was a bulwark against the sustained assault on the constitutionally created institutions designed to protect the constitutional model that the country chose in 1994.

The victimhood strategy, as purposed by Donald Trump, has been translated into South African conditions by a veritable range of populists, of whom the chief exponent is Jacob Zuma. This is fuelled by a need to equate the victims of apartheid with the proponents of RET and the consequent assault on the pillars of constitutional democracy. This, then, leads to the idea that any attempt to render any member of the RET faction accountable to the law is classified as a conspiracy, which in non-fake language means a conspiracy to assert the rule of law.

Whereas George Bizos and the other lawyers who courageously sought to assert the key principles of the rule of law in a repressive context, litigation now takes place in the context of a constitutional state, and where cases are adjudicated by a judiciary chosen by way of the Judicial Service Commission, which, whatever its structural weaknesses, was set up in terms of the Constitution.

It is a true disgrace and indeed more an assault on the integrity of the democratic legal system to seek to draw parallels in order to argue that the present system treats some, in particular RET litigants, as did the apartheid legal regime. The Magashule claim goes further — it seeks to favourably compare his and Jacob Zuma’s legal team with the legal heroes of the past, all fighting for justice against a repressive regime.

This raises the role of some lawyers in present-day South Africa. Lawyers have a fiduciary responsibility to the legal system and the courts of which they are officers. While any decent lawyer seeks to defend his or her client by any legal means available, when the argument presented has no legal basis and is overtly political such that its successful outcome is the very weakening of the legal system, then the conduct is questionable.

To suggest that if an order is not granted suspending the Zuma imprisonment, another Marikana will take place, may be acceptable at a political rally (although in the light of the violence, that is itself open to dispute) but it has no place in a court of law. Similarly, a careful read of the judgment of the Gauteng High Court dismissing Magashule’s application to set aside his suspension from the ANC and confirming that of President Cyril Ramaphosa, illustrates that not one of the arguments raised on Magashule’s behalf had any legal merit nor any congruence with any plausible reading of legal authority.

Under apartheid, the opponents of George Bizos used arguments that hollowed out the basis of a legal system, thus shaping it to pursue ends that had no relationship to justice. If there is a parallel, Mr Magashule, it is how the RET faction seeks to use law to undermine accountability, equality before the law and thus the same application of law to all who live in this country. 

It is high time that the legal profession debated the scope and range of ethical practice that shows ultimate fidelity to the values of the Constitution. DM

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  • One hopes, desperately, that Dali Mpofu reads, marks, and inwardly digests the above. I suspect, with not a little glee at the thought, that Mpofu might, after attempting the said inwardly digestion, be hit by a severe attack of heart-burn a la hot vindaloo. However, I hear/fear that it is possible for one to have as thick an inner lining as an outer skin. I would advocate a glass of warm milk would be in Mpofu interests should he read as intended by this writer, and most presumably in equal measure, by the honourable Balthazar (No relation to the former Balthazar John V. I do hope)! The Rule of Law HAS to be maintained, whatever the cost – and costs there are presently being paid, by Joe and his Josephine Public, in grand and honourable praiseworthy measures!

  • As a law student some 14 years ago, I recall people speaking incredibly highly of Dali. Now a member of the bar myself, I can’t help but wonder where it all went so horrible wrong for the guy.

      • Dear David, It is what one could describe as psychopathic personality. No matter how serious and ethical the teachers are, some students choose to follow the beat of their ‘personality’ disorders … rather than the values espoused by their teachers. Like entertainment … there are many to whom this cult of personality remains attractive, making them ‘viable’. Screening out such personality types before admission to a profession is an almost impossible task … and probably a violation of some of their basic ‘human rights’.

    • Mpofu is more of a bully than an advocate. Rather than engage an opponents arguments, Mpofu will insult the opponent which does not make a great legal mind.

  • My only minor observation is your omission of the name of Dulla Omar (and probably some others I did not know) from the list of persons involved in the search for justice during the apartheid era. After all, a legal faculty bears his name in this country. As a lay person, I had the privilege of working alongside him in local civic work. Your concluding observation is pertinent … BUT remember … RET type voices (which hold a fascination for many – interested or unable to distinguish it from entertainment … as Trump does) in such fora could skew or derail the project !

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