04-05-2025
Dali Mpofu saga highlights need to reform the failing Legal Practice Council
In her book I Will Not Be Silenced, journalist Karyn Maughan sets out in detail how, in her view, the Legal Practice Council (LPC) has done its best to ensure that advocate Dali Mpofu SC does not face accountability.
One of the cases that Maughan focused on concerned Mpofu's conduct while appearing for the now impeached Public Protector Busisiwe Mkhwebane. Apart from a deeply personal attack on Professor Thuli Madonsela which, on any conceivable basis could not be explained away as a legitimate attempt to discredit a witness, Mpofu threatened the chair of the inquiry, Qubudile Dyantyi, by saying, 'you'll pay one day'; presumably for the manner in which he chaired the inquiry.
Asked by Dyantyi whether he was being threatened, Mpofu answered in the affirmative and went on to say: 'It is not a threat … it's a promise.'
This outburst did prompt action from the LPC; in particular, a query as to whether Dyantyi was prepared to lodge a complaint. As Maughan noted, Dyantyi responded by pointing out that the entire exchange was readily available on video footage accessible on YouTube. In short, the exchange did not require a witness as the evidence upon which the LPC could determine whether Mpofu had acted in breach of the LPC's code of conduct was manifestly available.
Significantly, the Johannesburg Society of Advocates (JSA) investigated the incident based on the video evidence and representations made by Mpofu. It found that Mpofu had breached the relevant code of conduct, but before sanctions could be imposed, Mpofu resigned from the JSA, rendering the JSA powerless to proceed.
Mpofu's long history of alleged misbehaviour surely requires investigation on the principle that all legal practitioners are accountable for their professional conduct. For this reason, when complaints were lodged before the LPC and it was announced that there would be a hearing on 30 April, there was a hope that finally the LPC would apply its mind to these complaints and bring much-needed finality to this long-running issue.
The LPC cannot be blamed for the power outage that bedevilled the commencement of proceedings. But then charges were dropped, others were amended, and the entire proceedings were postponed indefinitely. According to reports, two of the charges dropped related to Mpofu's conduct against Madonsela and a remark made at a Judicial Service Commission hearing involving Chief Justice Mandisa Maya.
It was claimed that, as both Madonsela and the Chief Justice did not wish to be involved in these proceedings, the charges had to be dropped. However, neither of these distinguished jurists had been complainants and understandably did not wish to be involved in what doubtless Mpofu intended to be a long, drawn-out forensic battle. In short, they were not needed for the charges to be tested — all the relevant facts are captured on video. Here is the first count of the LPC's inexplicable conduct on this issue.
There is more. Section 38(4) of the LPC Act provides that the proceedings are open to the public unless the chair, on good cause, shows rules to the contrary upon an application to that effect by an interested party. In this case, there does not appear to have been a ruling. Hence, the question arises as to why the news media were not automatically allowed to attend from the commencement, nor why one of the complainants, the Council for the Advancement of the South African Constitution (Casac), was not consulted about the withdrawal of certain of the complaints against Mpofu.
And since the hearing is supposed to be in public and Casac is a complainant, there is surely no basis to postpone a hearing to determine their presence. It appears that without a ruling from the chair on good cause shown and after an application, both Casac and the news media were excluded from the proceedings that did take place.
The LPC Act provides that when an advocate is the subject of a complaint, the constituted disciplinary panel must be chaired by an advocate. Surely it behoved the LPC to appoint a senior counsel of long standing to chair this hearing, as Mpofu is a senior counsel of long standing. Yet again, there was a failure to do the obvious.
Lamentable failure
That the LPC as an institution has been a lamentable failure that is not up to the task of enhancing an independent, accountable legal profession has been obvious and not only because of the Mpofu saga. Last year, for example, the Legal Services Ombud castigated the LPC for failing to act in the public interest and (thus) contributing to injustice. The very institution needs to be transformed.
But that is not the only lesson to be drawn here. Mpofu is reported to have defended himself by claiming that the complaints against him were part of a long-running campaign to harass and discredit progressive lawyers. He cited the cases of Bram Fischer and Griffiths and Victoria Mxenge, the latter two murdered by the apartheid regime. In their three cases, these heroic legal figures fought against a racist regime determined to silence them by any brutal means at its disposal. Where is the legitimate comparison?
Now Mpofu is entitled and by brief obliged to represent his clients, the MK party, Jacob Zuma and Mkhwebane, as vigorously as is permitted by the Code of Conduct and if he considers this to be progressive lawyering, well, that is his and his supporters' opinion.
But where is the connection between this claim of progressive lawyering and insulting a witness over her physical appearance, or threatening the chair of a parliamentary inquiry, or the claim of materially misleading the court as documented in a judgment of judges Selby Baqwa, Lebogang Modiba and Ismail Mahomed in one of the many cases in which Mpofu appeared on behalf of Zuma? Now, if the video evidence is but fake news, doubtless Mpofu would have told us. Absent this, the video evidence and the judgment stand to be explained by him.
The outcome of these complaints is to be determined by a body that is enjoined to assert the principle of accountability. That the LPC does not appear up to the task is one issue to be debated. The other is to ask whether the principle of accountability of the legal profession only applies to some practitioners and not others. Are we in the process of following Donald Trump's United States, in which identity rather than legal principle is now our legal basis? DM
