Dali Mpofu degrades the legal profession

Willem Gravett and Llewelyn Curlewis write on the SC’s behaviour before the Zondo commission, and after

In a video clip from the Zondo Commission hearings on 23rd March 2021 that went viral on social media Advocate Dali Mpofu SC is shown telling his junior colleague at the Bar, Advocate Michelle le Roux, to “shut up.” Mpofu also demanded that Le Roux’s client, Public Enterprises Minister, Pravin Gordon, whom Mpofu was cross-examining, should also “shut up.”

The reactions of those immediately affected by Mpofu’s display were interesting. Minister Gordan, who is no stranger to heated public debate and ad hominem attacks, was visibly shocked at Mpofu’s treatment of Le Roux.

Deputy Chief Justice Zondo, one of the country’s most experienced and senior judicial officers, later remarked that he had never, in any court proceeding or commission hearing, heard one lawyer telling another to “shut up.” The Deputy Chief Justice also publicly expressed his “extreme concern” over Mpofu’s “unacceptable” conduct.

Le Roux did not engage Mpofu on his conduct at all. She has not laid a complaint against Mpofu at the Legal Practice Council (LPC), although she has every right to do so. Quite correctly, she has refused to comment publicly on the incident. Frankly, her silence speaks volumes.

The full footage of the incident:

Legal practitioners who represent clients in court are the gladiators of the legal profession. It does happen that trial lawyers sometimes say something in the heat of battle that transgresses the line of zealous advocacy into the unseemly. Normally the presiding officer will actively intervene in those situations to cool tempers and restore decorum (as Deputy Chief Justice Zondo attempted to do). It is then also customary for the legal practitioner in the wrong to apologise, first to the court or commission, and then to opposing counsel.

Mpofu is a senior member of the Bar and a member of the Judicial Services Commission responsible for the appointment of judges. As such, he bears a heightened duty to model professional conduct to his junior colleagues and the public, and, consequently, he should have immediately expressed contrition for his outburst.

His remarks to the tribunal, his junior colleague and the witness clearly and indubitably ran afoul of, among other strictures, the Uniform Rules of Professional Conduct of the General Counsel of the Bar (GCB), which explicitly state that: “All personalities between counsel should be scrupulously avoided . . . Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully avoided.”

Not only did Mpofu not do the right thing then and there at the hearing, but, subsequently, in reaction to social media criticism of his behaviour, Mpofu tweeted: “THEY CAN GO JUMP IN THE NEAREST LAKE! (followed by a black fist emoji).”

Now, to add insult to injury, Mpofu has lodged a complaint at the LPC against Le Roux and the Chairperson of the GCB, Advocate Craig Watt-Pringle SC. Mpofu demands that Le Roux be investigated for her “condescending attitude” towards him, which he claims to have “perceived as racist.” Watt-Pringle had publicly stated that Mpofu’s conduct “fell way below the standard expected of any advocate and particularly senior counsel who are held to a higher standard.”

He also commented that it was disappointing to see Mpofu play the race card after Mpofu had posted the tweet mentioned above. Mpofu accuses Watt-Pringle of “trivialising [Mpofu’s] own agency and genuine subjective feelings of perceived discrimination,” and that Watt-Pringle had discriminated against him “on the grounds of [Mpofu’s] race or other arbitrary prohibited ground.”

Mpofu has apparently decided that the best defence is offense. And the best offense in the current political climate seems to be to don the suit of armour of victimhood.

In lodging complaints against Le Roux and Watt-Pringle, Mpofu’s conduct has gone from contemptible to laughable. No rational person who saw the exchange at the Zondo Commission could possibly conclude that Mpofu was a victim in any way, shape or form (see transcript here).

In fact, in our opinion, if anyone has grounds to lodge a complaint, it is Le Roux – on the basis, not only of Mpofu’s manifestly unprofessional conduct, but also on what appeared to us to be Mpofu’s sexism and condescension towards her.

In addition to the member of the public who has already done so, we hereby appeal to the relevant stakeholders – Deputy Chief Justice Zondo on behalf of the Commission, the GCB, and the LPC – to intervene and lodge formal complaints against Mpofu over his conduct.

The rule of law is quickly eroding in South Africa. A former president refuses to abide by court orders, a judge president is found to have committed gross misconduct in his efforts to influence two Constitutional Court justices, and politicians, thwarted by the courts in their unabashed corruption, attack the judiciary mercilessly.

South Africans should not have any illusions: If the rule of law falls, anarchy will rise in its place. This disaster has played out countless times in history. One often hears the Shakespeare quote, “The first thing we do, let’s kill all the lawyers.” It is usually said in jest to intimate that society would be better off without lawyers. But that is not at all what Shakespeare meant.

These words, in Henry VI, were spoken by Dick the Butcher, an anarchist and paramilitary thug who preached chaos, turmoil and insurrection. Shakespeare knew that to attack the structure of society, to attack the moral order, you first have to go after the lawyers and eliminate the rule of law. The late Chief Justice Pius Langa reminded us that the legal profession is the guardian of the dignity and integrity of the nation. These are the values that we try to instil in our law students.

Mpofu has damaged the reputation of an honourable profession at a time when it can least afford its reputation to be tarnished, especially by one of its supposed guardians.

Watt-Pringle has rightly questioned whether Mpofu is “a politician or an advocate.” Mpofu’s conduct certainly suggests that temperamentally he belongs in politics. He evidently does not possess the maturity and restraint expected of a senior advocate. Mpofu should become a full-time politician again. The legal profession would be the better for it.

Willem Gravett & Llewelyn Curlewis
Department of Procedural Law, University of Pretoria Faculty of Law.