The disciplinary hearing of outspoken Advocate Dali Mpofu will commence tomorrow as the Legal Practice Council (LPC), which regulates the conduct of legal practitioners, comes to grips with some of the potentially politically explosive matters on its schedule.
This follows the council’s decision to await the outcome of the parliamentary process to remove Public Protector Busisiwe Mkhwebane before deciding whether to strike her off the roll.
Paul Hoffman, director of nonprofit organisation Accountability Now, asked the LPC to investigate Mkhwebane’s conduct in 2019 after the Constitutional Court finding that she had acted in bad faith during her investigation of the R1.125 billion that was provided by the SA Reserve Bank to Bankorp between 1985 and 1991.
The LPC is mandated to set norms and standards, and has a strict code of conduct that holds legal practitioners accountable.
Mpofu, a prominent EFF activist, faces several charges relating to the breach of the LPC’s code of conduct, following his alleged outburst against Advocate Michelle le Roux, who was Public Enterprises Minister Pravin Gordhan’s legal counsel when he appeared before the Zondo commission of inquiry into state capture in March last year.
The Johannesburg Society of Advocates found Mpofu guilty of an ethical violation for speaking disrespectfully to Le Roux during a heated exchange at the commission.
At the LPC, he will be up against a panel of heavyweight legal practitioners comprising seasoned advocate Ramola Naidoo, Unisa professor of law Vuyo Peach and experienced attorney Johann Grosskopf.
City Press has learnt that the trio allegedly dismissed former department of correctional services director-general Arthur Fraser’s complaint against Advocate Paul Pretorius in February this year. However, this could not be independently verified at the time of writing.
Peach was also involved in a four-member panel dealing with Mkhwebane’s matter in 2019.
LPC spokesperson Kabelo Letebele confirmed that the Mpofu matter would proceed tomorrow, and that a decision on Mkhwebane awaited “the finalisation of the parliamentary process”.
CHARGES AGAINST MPOFU
City Press understands that Mpofu faces charges relating to misconduct for when he allowed his “ill-feelings” towards Le Roux to overtake him, and refused to sit down when instructed to do so by commission chairperson and now Chief Justice Raymond Zondo during the sitting with Gordhan last year.
Other charges include breaching clauses of the council’s code of conduct.
These clauses state that legal practitioners must:
- Deal with the judicial officer, court staff and all other persons in court with civility and respect;
- Not allow any ill-feeling between litigants or legal practitioners to interfere with the civil and professional conduct of the matter; and
- Not indulge in personal remarks about opposing legal practitioners or witnesses, whether in or out of court, and not allow any personal antipathy that might exist between the legal practitioner and the opposing legal practitioners to intrude on the conduct of the matter.
These emanate from Mpofu’s conduct on March 23 last year at the commission, when he allegedly told Le Roux to “shut up”.
In addition, he allegedly told Gordhan to “shut up” because he was still on the floor.
By the time of going to press, Mpofu had not responded to requests for a comment.
City Press understands that Mpofu was granted an opportunity by the LPC to respond to the charges against him.
As part of that defence, Mpofu is believed to have indicated that:
- Le Roux was his junior and he had felt insulted by her reference to his cross-examination as “political grandstanding”;
- He was disrespected during a televised sitting when Le Roux allegedly interrupted him;
- Le Roux’s behaviour was condescending and he perceived her attitude to be racist;
- Le Roux made disparaging remarks that were hurtful; and
- Le Roux broke accepted protocols regarding how and when to respond to objections, and also disregarded issues of seniority.
THE MKHWEBANE MATTER
Hoffman said the LPC had taken the stance that it would respond to the Mkhwebane matter after the criminal case had been heard and after Parliament had determined her fitness for office.
“So, basically, the council isn’t doing its job. That’s the long and the short of it. It should have disciplined her after the Constitutional Court said that she was lying under oath. That’s a good enough reason to strike any advocate off the roll. However, because the LPC – like government – regards the Public Protector as some sort of royal game species at which you aren’t allowed to take potshots, Mkhwebane stays on with impunity – to the detriment of poor people in South Africa. What she does actually undermines the democratic project in the country,” he said.
In an email to the LPC, Hoffman stated that there were serious, final and unappealable findings reflecting on the honesty, integrity and competence of Mkhwebane.
“Kindly confirm that the council is looking into the matter with a view to bringing an application for the striking off the roll of Advocate Mkhwebane as part of its legislated disciplinary functions,” his email read.
“As you know, it is intolerable that an officer of the court should be found to be lying under oath. Our highest court has so found in respect of Mkhwebane. Her response that the judgment of the court creates a bad precedent, is contemptuous of the court and does her no credit.”
Mkhwebane’s spokesperson, Oupa Segalwe, had not responded to questions sent by City Press by the time of going to press.
In relation to Fraser’s complaint, City Press understands that he submitted it in February last year. However, it was dismissed later that month.
In part, Fraser is believed to have claimed that Pretorius had misled the commission.
He cited the proceedings of January 25 and 26 in which Pretorius had allegedly colluded in the presentation of false information made by Sydney Mufamadi.
Mufamadi testified as the State Security Agency high-level review panel chairperson at the time.
Fraser also stated that evidence presented by the agency’s acting director-general Loyiso Jafta was false.
This evidence, he said, had presented him as corrupt in alleging that he had squandered public funds and assets to the value of at least R9 billion during the 2017/18 financial year.
Fraser also cited that he had laid a charge of perjury against Pretorius and asked the LPC to investigate.
A comment had not been received from Fraser by the time of going to print.