Mpofu ‘should know better’, says legal expert on his argument during Mkhwebane’s impeachment hearing

Dali Mpofu, suspended public protector advocate Busisiwe Mkhwebane’s legal counsel, yesterday wanted parliament to “revisit” court judgments, something seen as “bizarre” by a legal peer.

While minority rulings hold no legal force, Mpofu missed his way when he disputed the power of majority judgments by the Constitutional Court (ConCourt), as he argued its minority or dissenting judgments should be preferred by the Section 194 inquiry into Mkhwebane’s impeachment hearing.

Mpofu addressed the rulings which were the genesis of the inquiry into Mkhwebane’s fitness to hold office and described them as a “counter narrative”. He claimed the evidence leaders only focused on the majority judgment of the ConCourt and argued minority judgments should be ideal because they “count”.

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“Some may say minority judgments should be ignored and we know evidence leaders hold the view that judgments are binding, whatever that means,” he said showing air quotes.

Legal expert advocate Mannie Witz said: “Advocate Dali Mpofu should know better. There was a complete difference which also showed what democracy and South Africa was built on. You separate your executive, legislative and judiciary which reflect the separation of powers. The one does not take precedent over the other,” he said.

Witz added, in any event, the majority in a judgment took preference over the minority. “You may get what is called a dissenting judgment when there is more than one judge who disagrees with the majority opinion but there has to be a result, not a draw,” he said.

In regards to the CIEX Reserve Bank matter, where the ConCourt said Mkhwebane unlawfully sought to amend the mandate of the Reserve Bank, Mpofu said he wanted to “flag” two issues on the judgments against Mkhwebane.

The viewed motion forMkhwebane’s removal could be condensed into four main broad charges, which were underpinned by four main judgments.

“It is CIEX investigation, Vrede dairy report, CR17/Bosasa issue and the Financial Services Board,” he said. “It is important for me to focus on the main issues around this report.”

Mpofu referred to a minority judgment by former Chief Justice Mogoeng Mogoeng, one he said was a dissenting judgment, which found Mkhwebane not guilty of “gross negligence”, or bad faith, in the CIEX investigation. He further supported his argument of another minority judgment by Judge President Patricia Goliath, which were “equally strong judgments issued”.

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However, Mogoeng Mogoeng’s minority judgment in the ConCourt’s South African Reserve Bank judgment against Mkhwebane, acknowledged she “got the law completely wrong”.

Evidence leader advocate Nazreen Bawa said she did not deal with the ConCourt judgment, only with the full bench of the High Court in Pretoria’s ruling, which set aside Mkhwebane’s order for Absa to pay R1.1 billion for an apartheid-era bailout provided to its predecessor, Bankorp, by the Reserve Bank and declared she had abused her powers.

Earlier in the day, Mpofu said they had written to committee chair Qubudile Dyantyi on Monday to request he subpoena President Cyril Ramaphosa. The president had previously said he would not stand witness in Mkhwebane’s impeachment hearing.

Dyantyi said he would respond once he had received the letter.

Why dissenting judgments are important

• The importance of dissenting judgments and the need for their protection cannot be overemphasised. Their advantages outweigh their disadvantages.
• Ultimately, dissenting judgments are instrumental in the development of constitutional law and to promote the transparency of the judiciary.
• They afford the public the opportunity to gain greater understanding of the law and judicial processes. ɳ Subsequent cases can make use of dissenting opinions as part of an argument – if relevant.
• They allow questioning of the reason behind judgments, promote clarity of thought and ultimately create growth. – Lynne Koen, Maponya Attorneys.

Published by withoutprejudice.co.za

– lungas@citizen.co.za