Dali Mpofu’s forays into the swamps of invective play fast and loose with legal ethics

Last week, advocate Dali Mpofu abandoned the parliamentary inquiry into the impeachment of his client, suspended Public Protector Busisiwe Mkhwebane, after the parliamentary committee considering the matter rejected an application to adjourn its work pending, so he claimed, yet another high court challenge to the proceedings.

Mpofu claimed, without a factual or legal basis to do so, that the committee “as it is currently constituted is completely illegal” and that he is not able “to take part in further illegal activities”.

Earlier Mpofu had told the committee that “in appropriate circumstances... an authority should halt its actions when it is aware review proceedings are to be instituted against it. Failure to do so may render the official concerned liable for contempt of court.”

The committee rejected this argument, which is not surprising given that no such rule exists in our law. The committee previously also rejected applications for the recusal of its chairperson and of the evidence leader, which was also not surprising given the fact that the claims lacked a proper factual basis.

But these applications also illustrate why the judicialisation of the parliamentary inquiry has contributed to questionable behaviour by Mkhwebane’s legal representatives. What has in effect happened is that Mkhwebane and her legal representatives have insisted that the members of the parliamentary committee (excluding MPs from the EFF and the UDM who have been energetically partisan throughout) are held to the same standards of independence and impartiality expected from judges, but that they themselves should not be held to any standard, and surely not to the standard expected from any legal practitioner appearing in a court of law.

The problem started when the Constitutional Court ruled earlier this year in Speaker of the National Assembly v Public Protector and Others that Chapter 9 office bearers facing an impeachment inquiry in Parliament were entitled to “full legal representation” during the  inquiry, as this was required to ensure that the procedure was reasonable and fair.

Because Parliament interpreted this judgment as requiring the kind of legal representation enjoyed by a litigant in court proceedings, many weeks were wasted on recusal applications and on the cross-examination of witnesses that seemed to have little bearing on the issues the committee was called upon to decide.

When the chairperson attempted to curtail Mpofu’s forays into a swamp of irrelevancy and invective, he complained bitterly of unfair treatment, and accused the chairperson of bias – something he would almost certainly not have done in a court of law.

Until recently, Mkhwebane and her lawyers effectively used the threat of further court applications (and thus further possible delays) to gain a tactical and political advantage (which happens to align with the political or financial interests of the EFF) and to escape any censure or consequences for Mr Mpofu’s theatrics.

Read more in Daily Maverick: “High court was guilty of judicial overreach when overturning Ramaphosa’s suspension of Public Protector”

When his luck finally ran out last week, and his application for an indefinite postponement of the committee’s work failed, Mpofu abandoned the inquiry.

The inquiry, which continues despite the walkout, heard earlier this week that Mr Mpofu had been paid more than R12-million in legal fees by the Office of the Public Protector. (It is not clear whether the walkout last week was linked to the evidence presented this week.)

Whatever the reasons for the walkout might have been, it is encouraging that the chairperson of the committee decided to proceed despite Mpofu’s (as yet not fully explained) absence. The decision has partly been justified based on the Supreme Court of Appeal (SCA) judgment in Take & Save Trading CC and Others v The Standard Bank of SA Ltd, in which that court cautioned that fairness of court proceedings required the presiding officer to “control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence”.

The SCA also warned that:

“One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented.

“Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.”

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