Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Dali Mpofu’s forays into the swamps of invective play fast and loose with legal ethics
The judicialisation of the parliamentary inquiry into the impeachment of suspended Public Protector Busisiwe Mkhwebane has allowed Mkhwebane and her lawyers to engage in ever more farcical attempts to delay, and ultimately to delegitimise, the entire process.
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.
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.
It is unclear whether Mr Mpofu will return to represent his client before the committee (the Public Protector’s explanations in this regard have been confusing and vague), but if he does return, it will be interesting to see whether he continues his attempts to delay and discredit the work done by the committee.
To understand why these tactics may present ethical challenges, and why the chairperson has every right to nip them in the bud, one needs to turn to the Code of conduct for legal practitioners, candidate legal practitioners and juristic entities. The code imposes onerous ethical duties on all legal practitioners to ensure the legal profession is not brought into disrepute.
While section 14.4 of the code makes clear that it is not exhaustive of the ethical professional responsibilities of counsel, it does provide important guidance on how counsel should behave.
It might come as a surprise to members of the public who watch live-streamed broadcasts of court and other quasi-legal proceedings, but legal practitioners are not permitted to make obviously false factual claims to advance the interest of their clients, nor are they permitted to lie about the law.
Thus, section 22.8 of the code (which applies to advocates) states that while counsel may rely on the facts given to them by the instructing attorney or client when they draft legal papers, they may not “gratuitously disparage, defame or otherwise use invective”, or “recklessly make averments or allegations unsubstantiated by the information given” to them.
The sections of the code that apply to all legal practitioners appearing before courts and other tribunals contain even more detailed provisions that, in theory, would prevent Mr Mpofu or any other legal practitioner from misleading courts or other tribunals, by making up facts or inventing legal rules.
Thus section 60.3 of the code states that “a legal practitioner shall not put to a witness an allegation of fact if the legal practitioner has no reasonable expectation that admissible evidence, whether oral or otherwise, is available to be adduced to substantiate the allegation of fact”.
Section 61.1 further requires 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”. This rule is augmented by section 61.9 of the code which prohibits legal practitioners from relying “on any statement made in evidence which he or she knows to be incorrect or false”.
While I leave it to readers to draw their own conclusions on whether Mr Mpofu acted in breach of one or more of these provisions while representing Ms Mkhwebane before the parliamentary inquiry, I would suggest that other provisions of the code have clearly been breached.
Most notably, section 62.1 of the code requires a legal practitioner to “guard against becoming personally, as distinct from professionally, associated with the interests of the client”. This ship has obviously sailed, most notably because Mr Mpofu uses political and legal arguments interchangeably, creating the impression that he is representing the Public Protector in defence of his political views and of the political party of which he is a senior member.
This has been exacerbated by the personal attacks launched against witnesses and members of the committee who disagreed with him.
Section 64.1 further prohibits legal practitioners from abusing “or (to) permit abuse of the process of court or tribunal” and requires them to “act in a manner that shall promote and advance efficacy of the legal process”, while section 64.2 prohibits legal practitioners from deliberately protracting “the duration of a case before a court or tribunal”. I already explained above why I believe these provisions are applicable to this case.
In theory, section 14.9 of the code imposes a specific duty on counsel to report unprofessional conduct by other counsel. In theory, the Legal Practice Council (LPC) should also enforce the provisions of the code of conduct. But there seems to be little appetite to do so. This may be partly due to the tendency of members of the same profession to close ranks, and not to upset the apple cart. It may also be costly to break ranks, given how profitable it has become for counsel to represent state institutions.
But there is clearly another problem: the failure of the LPC to enforce the code in a principled and vigorous manner.
One example is the failure of the LPC to act against dodgy lawyer and lottery crook Lesley Ramulifho for fabricated invoices in a spurious court challenge he brought against the news website GroundUp. Perhaps the fact that a new board for the LPC has recently been appointed may help to spur the LPC into action.
But, for now, I am not holding my breath.
