Advocate Mpofu’s threat: what the facts and the law say

Last week Advocate Dali Mpofu threatened to sue me if I did not delete an article critical of him which I had published on my Blog. (The article – like all others on this Blog – are also published on the Daily Maverick site.) I ignored the threat. It may perhaps be of interest to look again at the applicable facts and the law to show why I ignored it.

Some of the relevant facts

On Friday 29 June advocate Dali Mpofu made submissions on behalf of his client, Mr Tom Moyane, to the SARS Commission chaired by judge Robert Nugent. During the hearing judge Nugent complained about the emotive nature of the submission which, he claimed, was thin on facts.

Judge Nugent indicated that he has never been called a kangaroo court, and pointed out that it was an offence to disparage a commission like Mpofu did. However, Nugent said he had a thick skin and will not institute any action against Mpofu for the commissioning of a crime.

On 2 July judge Nugent issued a written ruling responding to the demands made by Mpofu on behalf of his client, rejecting all the demands. In the written ruling judge Nugent calls the document submitted on behalf of Moyane “a disgrace” and continued: “[n]o less disgraceful than its repetition in counsel’s  [Mpofu’s] address”. Nugent then continued:

The content of the document plays fast and loose with the facts, draws inferences from inadequate material, and is littered with abuse, invective, and sinister suggestions, purporting to support an allegation that, so it was said: ‘the Commission has prejudged the issues before it and is merely going through the motions to reach a predetermined outcome’.

The document submitted on behalf of Moyane attempted, noted judge Nugent, to throw “bait before the media” by trying to revive the claim that there was a rogue unit at SARS. It then continued:

Counsel is well aware that inferences are properly to be drawn only if they take account of all the facts, and it is apparent that counsel is in possession of few facts indeed. Indeed counsel was indifferent to further facts that were related to him in the course of the hearing, intent, as he was, on ploughing on whatever the facts may be. The allegations that are made, on the basis of half-baked inferences, are a disgrace, and are rejected.

Mpofu had alleged that Moyane was not given an opportunity to “rebut” the testimony of others who had come forward to make submissions to the Commission. However, a quick search reveals that Government Gazette 41715 contains an invitation to anyone (including Mr Moyane) to make submissions to the Commission in the following terms:

Any interested persons including juristic persons, entities, institutions and organs of State are invited to make written submissions to the Commission, in relation to all or  specific items of the Terms of Reference, by no later than 31 July 2018. Written  submissions must be concise and succinct, and must be furnished under cover of a brief  summary. So far as facts are sought to be placed before the Commission, such facts  must be attested to or confirmed by affidavit. The date by which submissions should be  furnished may be extended by the Commission if there are sufficient reasons for doing so. Upon receipt of written submissions the Commission may require, by way of a notice, a  deponent or any person to appear before it in order to give oral evidence on specified aspects of the Terms of Reference and in such notice it may give directions with regard  to such oral evidence. The Commission may also receive evidence in camera…

Partly based on these facts (it is not possible to repeat all the relevant facts here), I commented that it was my opinion that Advocate Mpofu had acted unethically.

Comment on the facts

On my interpretation, at the hearing on 29 June, judge Nugent suggested that Advocate Mpofu committed a criminal offence by disparaging the Commission. An interesting constitutional argument could be developed to argue that the criminal prohibition on disparaging the Commission unconstitutionally infringes on the right to freedom of expression, although the section could arguably be read narrowly to justify this limitation on the right to freedom of expression.

Both at the hearing and in his written ruling Judge Nugent criticised Advocate Mpofu harshly. As I understand it, the ruling that Mpofu played fast and loose with the facts was particularly harsh. In an online dictionary the following interesting explanation is given of this term:

Be recklessly irresponsible, unreliable, or deceitful, as in This reporter is known for playing fast and loose with the facts. This term probably originated in a 16th-century game called ‘fast and loose’, played at country fairs. A belt was doubled and held with a loop at table’s edge, and the player had to catch the loop with a stick as the belt was unrolled – an impossible feat.

In other words, judge Nugent suggested that Advocate Mpofu was unreliable and deceitful. Nugent suggested further that Mpofu failed to take cognisance of all the facts and even after being corrected, he remained “indifferent” to the facts.

In my view, these harsh findings may be partly due to the fact that Advocate Mpofu had argued that Moyane had not been given the opportunity to rebut the evidence of other witnesses, while there is an open to invitation to him and anyone else to make submissions to the Commission. Government Gazette 41715 makes this absolutely clear. Nothing prevents Mr Moyane from making submissions and, after hearing the oral evidence provided by other witnesses, from supplementing this submission with an additional one. He has until the end of July to do so, but even this deadline can be extended.

The applicable law

The Uniform Rules of Professional Conduct of the General Council of the Bar governs the behaviour of advocates. Rule 3.2 states as follows:

Counsel’s duty to divulge to the Court material facts of which he has knowledge is governed on the one hand by his overriding duty not to mislead the Court, and on the other by his duty not to disclose to any person including in a proper case the Court itself, information confided to him as counsel. The application of this principle in particular circumstances and the question of when counsel may be said to have knowledge of facts may be difficult to resolve, and in such cases counsel should refer to the Bar Council for guidance.

Furthermore, rule 4.18.3 (f) states:

It is undesirable for a member to express an opinion in the press, by letter, article, interview or otherwise on any matter which is still pending in the Courts. Notwithstanding the aforegoing, a member may express an opinion in the media, in general terms, on an issue which is still pending, provided that the member does not thereby purport to pre-judge the result.

Interestingly, rule 4.21.1 also states:

A member must not issue statements to any news or current affairs media in connection with any matter in which he/she is or has been briefed or instructed.

As I interpret the rules they also apply to the conduct of an Advocate who represents a client in other for a like disciplinary hearings and Commissions of Inquiry. IThis interpretation is based on rule 1.2.2 which states:

These Rules are designed for the guidance of members of the profession. They are not intended to be exhaustive nor to cover every point that may arise in the course of practise of the profession of an advocate.

Having explained the ethical rules applicable to advocates, let me turn to the law of defamation. The law of defamation seeks to protect the interest individuals have in their reputation. If others make statements about you that would tend to lower your esteem in the eyes of others, they are defaming you. The law assumes that statements attacking your character will normally have the effect of lowering your reputation (and your standing and life chances) in the eyes of others.

Once you have convinced a court that statements made about you are defamatory, it is presumed that the publication was both unlawful and intentional. If you want to avoid liability for making such prima facie defamatory statements, you will have to raise a defence which either shows that the statements were not made intentionally or were not unlawful. As the Constitutional Court explained in Khumalo v Holomisa:

Although not a closed list, the most commonly raised defences to rebut unlawfulness are that the publication was true and in the public benefit; that the publication constituted fair comment and that the publication was made on a privileged occasion.

Two defences are available. First, a statement that is true and deals with a matter of public interest will therefore not be unlawful and a person who makes it will not be liable for defamation and nothing more needs to be said about it.

Second, on the matter of “fair comment” the Constitutional Court held in The Citizen 1978 (Pty) Ltd and Others v McBride that it might be better to call this defence “protected comment” as the label “fair comment” was misleading, stating that:

the criticism sought to be protected need not ‘commend itself’ to the court. Nor need it be ‘impartial or well-balanced.’ In fact, ‘fair’ in the defence means merely that the opinion must be one that a fair person, however extreme, might honestly hold, even if the views are ‘extravagant, exaggerated, or even prejudiced’. The comment need be fair only in the sense that objectively speaking it qualifies ‘as an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was based, and not disclosing malice.’… If, to be protected, comment has to be “fair”, the law would require expressions of opinion on matters of fact to be just, equitable, reasonable, level-headed and balanced. That is not so. An important rationale for the defence of protected or “fair” comment is to ensure that divergent views are aired in public and subjected to scrutiny and debate. Through open contest, these views may be challenged in argument. By contrast, if views we consider wrong-headed and unacceptable are repressed, they may never be exposed as unpersuasive. Untrammelled debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values. Protected comment need thus not be ‘fair or just at all’ in any sense in which these terms are commonly understood. Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true. In the succinct words of Innes CJ, the defendant must ‘justify the facts; but he need not justify the comment’.

Conclusion

I have set out the applicable law and the facts as clearly and as accurately as is possible. I believe that for anyone who dispassionately applies the facts to the law, it must be clear that a threat of defamation was misplaced. But I need not detain readers further with my analysis explaining why I believe this to be so. Readers, I am sure, are all capable of drawing their own conclusions from the relevant facts and law provided.

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