Dali Mpofu’s defence of Busisiwe Mkhwebane skating on very thin ethical and legal ice

Mpofu’s often spurious objections, lengthy monologues, politically motivated digressions, and ad hominem attacks on witnesses and political opponents sometimes seem to have only a tenuous connection to the applicable (accurate) legal principles and the relevant verifiable facts.

On Monday 6 March 2023, suspended Public Protector Busisiwe Mkhwebane’s legal representative, advocate Dali Mpofu, accused former Public Protector Thuli Madonsela of presenting a “litany of falsity” to the National Assembly ad hoc committee considering Mkhwebane’s impeachment, claiming that the affidavit she submitted to the committee was “not an affidavit”.

Mpofu also suggested that changes she made to her statement to fix typos were unlawful and potentially criminal, because a commissioner of oaths had not initialled every page of the document.

The matter wasted almost three hours of the committee’s time, before one of the evidence leaders, advocate Ncumisa Mayosi, intervened to challenge the legal basis for the accusations.

This wise intervention made clear that there was, in fact, no legal basis for the accusations. The relevant regulations merely require a commissioner of oaths to sign the document, something the Western Cape High Court confirmed in Minister of Safety and Security and Others v Mohamed.

In various other testy exchanges between Madonsela and Mpofu on Monday and on Tuesday 7 March, he also wrongly suggested that Professor Madonsela was not a registered advocate (which is in any event not a requirement for appointment as Public Protector); accused her of being complicit in an assault; and (after she told him that the latter comment was “another low, even by your standards”), threatened to “deal with” Madonsela – adding that this would be “ugly”.

While all this will likely end up as just another footnote to the unnecessary protracted psychodrama playing out before the impeachment committee in the National Assembly, it nevertheless points to larger problems with the way in which the committee has chosen (or has been forced) to conduct its business, and raises broader questions about the ability and willingness of the Legal Practice Council (LPC) to uphold ethical standards within the legal profession.

It was perhaps inevitable that the section 194 committee would get bogged down in a political swamp, and that some MPs on the committee would use the opportunity to wage larger political battles.

After all, the members of the committee are all elected politicians representing the interests of their political parties (and, in some instances, pursuing personal vendettas against individuals perceived to have shown a lack of respect), which is not easily squared with the committee’s duty to conduct an inquiry “in a reasonable and procedurally fair manner” and to make rational findings based on the correct legal principles and facts.

Unfortunately, things have been far worse than I had feared they would be. The rules of the National Assembly require that the process be concluded “within a reasonable timeframe”, something it has not been able to achieve.

Instead, the process continues to drag on and on, with the committee often forced to spend hours, or even days, listening to the testimony of witnesses with very little to say about events that could help the committee to assess the charges against Ms Mkhwebane.

Many days have also been wasted by Mr Mpofu, whose often spurious objections, lengthy monologues, politically motivated digressions, and ad hominem attacks on witnesses and political opponents sometimes seem to have only a tenuous connection to the applicable (accurate) legal principles and the relevant verifiable facts.

Mkhwebane and her legal team have also employed various other tactics – including several last-minute requests for the postponement of scheduled hearings – that have dragged out the proceedings. (Whether their aim is to delay the final decision on impeachment until Mkhwebane’s term of office ends, and she becomes entitled to a large pay-out, is not clear.)

The Constitutional Court may inadvertently have contributed to the unbecoming manner in which the process has unfolded when it ruled last year in Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others that a Chapter 9 office bearer was entitled to full legal representation during a section 194 impeachment inquiry to ensure that the process was fair and reasonable.

While the court was almost certainly correct to invalidate the National Assembly rule which held that a Chapter 9 office bearer like Mkhwebane was entitled to legal representation during the impeachment process, provided that the legal practitioner did not participate in the committee inquiry, the court failed to consider what “full legal representation” may look like in the context of the kind of inquisitorial process followed by the committee.

The court failed to anticipate that allowing Chapter 9 office bearers full legal representation before the impeachment committee was likely to create serious problems – especially in the absence of the kinds of rules that apply in criminal courts to curb potential abuses of the system by defence lawyers.

It is not that surprising that legal practitioners embedded in an adversarial legal culture would exploit the absence of rules to ensure the smooth running of the inquisitorial process to the advantage of their client.

No such rules are currently in place: the National Assembly rules merely require the committee to conduct the inquiry “in a reasonable and procedurally fair manner”, but is silent on the role of legal representatives in the process.

As a result of this ambiguity, the Public Protector has insisted that she is entitled to the kind of robust legal representation enjoyed by an accused person in a criminal trial – but without any of the constraints applicable to defence lawyers in criminal trials.

At the same time, the Public Protector and her legal representatives have strenuously objected to any signs of evidence leaders behaving like prosecutors, insisting that they remain neutral presenters of evidence.

Utilising the threat of further litigation (and thus further delays in the proceedings), the Public Protector’s legal representatives have had significant success in exploiting the uneven playing field created by the ConCourt ruling, turning parts of the proceedings into an unseemly political spectacle to distract the public’s attention from the relevant law and the facts, and to denigrate individual witnesses and others who may have attracted the ire of Ms Mkhwebane, Mr Mpofu and other EFF leaders.

In recent weeks, the chairperson of the committee has had some success in curtailing some of these excesses, but in the absence of clear rules to prevent the kind of political grandstanding we have witnessed, his task remains an unenviable one.

Hopefully, when Mkhwebane testifies later this month the chairperson will uphold the principle enunciated by the Constitutional Court in Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others that “the committee is at liberty to cross-examine the office bearer, and to request the office bearer to directly respond to the questions posed”.

All this would have been unnecessary if only the LPC had acted with sufficient diligence to strike Ms Mkhwebane from the roll. The first request to do so was lodged with the LPC in July 2019.

In December 2020 a full bench of the High Court also referred Mkhwebane to the LPC after making scathing findings against her. But it is unclear what, if anything, the LPC has done to finalise these complaints.

It is also unclear whether anything should be read into the fact that Mkhwebane’s name does not appear on the LPC’s list of registered legal practitioners available on its website.

Given this tardiness, I would be surprised if the LPC takes any action to investigate any possible breaches by Mr Mpofu of the relevant provisions of section 57 of its Code of Conduct.

Section 57 of the code imposes a duty on 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,” as well as a duty to “disclose to a court or a tribunal all relevant authorities of which the legal practitioner is aware that might reasonably have a material bearing on the decision the court or tribunal is required to make”.

While one might argue that the misstatement of the law and spurious accusations levelled against Madonsela may not have breached the code because the false claims were made in ignorance and not out of malice, one would at least have to look into the matter before coming to such a conclusion.

However, it appears that this is not the first time Mr Mpofu has made self-evidently wrong claims about the law when representing Ms Mkhwebane. An example of this can be found in the 2020 Constitutional Court judgment of Public Protector v Commissioner for the South African Revenue Service and Others.

In this case, the Constitutional Court (in a unanimous judgment penned by Madlanga J) set aside the High Court’s personal cost order against Mkhwebane, despite the fact that she had falsely claimed under oath that she had not received notice that a personal costs order would be sought against her. (While she did receive notice that such an order would be sought, she was not cited by name, something her lawyers wrongly told her was required by our law.)

The Constitutional Court remarked that on the face of it, “her assertion before us that there was no notice in this regard is astounding and warrants censure and perhaps more”. The court nevertheless declined to make a personal cost order against her, explaining that it was the senior counsel who represented her in the case who advised her to make this claim.

The court noted that in oral argument before the court “her counsel owned up to the fact that it was his idea that the Public Protector must adopt this stance, an idea he wisely abandoned and did not pursue in oral argument as it was legally indefensible”.

Describing the Public Protector’s assertion that her false claim that she was not given notice was justified because she was not cited by name as “outlandish”, and noting that she could be criticised “for failing to realise that the legal point she was obviously advised to advance was a non-starter”, the court declined to punish her with a personal cost order for making this false claim because “she got that advice from senior counsel” [the court’s italics].

Mkhwebane’s senior counsel in the case happened to have been advocate Dali Mpofu.

As far as I am aware, this matter has never been taken up by the Legal Practice Council. While there may be as yet undisclosed reasons to explain away this seemingly unethical behaviour, I worry that the LPC’s inaction may encourage other legal practitioners to advance self-evidently mistaken legal arguments and false factual claims in support of the seemingly dishonest actions of their clients.

It may also send a signal to Mr Mpofu that he will not be held bound by the Code of Conduct – no matter how appalling his behaviour when representing clients politically aligned to the party he belongs to.

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