Advocate Dali Mpofu at the Western Cape High Court in Cape Town on 11 December 2023. Picture: Gallo Images/Brenton Geach
Advocate Dali Mpofu’s reputation took a massive knock for pursuing an appeal on behalf of former public protector Busisiwe Mkhwebane, say legal experts.
SCA Judge Nathan Ponnan this week slammed Mpofu for pursuing an appeal on a recusal matter, labelling it “dead on arrival”.
Ponnan did not hold back when criticising Mpofu on his often abrasive and protracted arguments.
“Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom, particularly in response to searching questions from the bench,” Ponnan said.
“To understand the decision-making process, those who practice in this court are expected to have more than just a nodding acquaintance with the relevant rules, as also the established jurisprudence of this court.
“Developed skills in legal research, analysis and writing are an indispensable part of an appellate practitioner’s toolkit.”
The judge also criticised Mpofu for not objectively assessing Mkhwebane’s reasons for wanting to appeal the ruling.
“Unless the matter is approached from a detached perspective, a legal representative may well develop tunnel vision.”
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Speaking to The Citizen, legal analyst Professor Pierre de Vos said Ponnan’s comments about Mpofu seem accurate, but circumspect.
“That is damaging for one’s reputation. It is damaging because the court basically said that he wasn’t properly prepared and he didn’t know the law. The bigger issue is really the difficulty of being emotionally and politically invested in your clients in a way that goes beyond just fighting in their corner.
“For any advocate that creates problems because you have to give sound advice. If you’re a legal representative, you really have to soberly assess the facts and law. The judge in this case said Mpofu didn’t do that partly because he’s so closely associated with politics,” De Vos said.
De Vos said Ponnan’s judgment also alluded to Mpofu simply taking cases to court and presenting arguments for political supporters of an individual or a political party.
“That is one of the criticisms that Advocate Mpofu has faced for quite a while; that the arguments are really for a political audience, the voters of the EFF or MK, and not for the judges who needs to be convinced.”
De Vos said lawyers always try to win cases for the clients, even if there is a small chance of success.
“It really depends on how hopeless the case is. Sometimes one has a very weak case, but there’s at least a small chance you will win. There’s nothing wrong with a legal representative fighting to win that case.
“But if it is a hopeless case, then this is an abuse of process and the ethical thing to do, if your client insists on proceeding, is to withdraw from the matter.”
Legal analyst Mpumelelo Zikalala agreed that the lambasting Mpofu got from Judge Ponnan does damage his reputation.
“You are only as good as your last case, reflected in law reports. Now, in this case, you have his name, which will always remain there and even future generations are going to read to say there was one Advocate Mpofu that was written to in this particular manner.”
However, Zikalala said Judge Ponnen should not have digressed into the territory of counselling Mpofu.
He said the role of a judge is simply to interpret what the law says and guide advocates on what the interpretation is, while also taking into account case law.
“So unless you are asked to adjudicate about the conduct of the legal practitioner, getting it into the territory is very dicey. You are now getting into territory you are not strictly supposed to be in. Unless there’s sufficient reason to warrant you to get into that,” Zikalala said.
Zikala cited an example of judgments overturned by the Constitutional Court.
“If there are, does it mean that the judge who passed the initial judgement is incompetent, or that they should not be held in a particular manner?
“So, as legal practitioners, we usually stay away from casting aspersions on our fellow learned colleagues and simply concentrate on what the law is saying.
“If you want to prove the incompetence of an individual, show how incompetent they were when it comes to not identifying the correct legal principles that should be there.
“The minute we go to other territories, it’s a bit dicey. I wouldn’t recommend that it should be done,” Zikalala said.
Zikalala said even though Mpofu may have known that Mkhwebane’s appeal would be fruitless, lawyers and advocates are “creatures of instructions”.
“So we do what the instructions tell us. Advocate Mpofu may have, during private conversations, said to Advocate Mkhwebane you’re not going to win this matter.
“However, if Advocate Mkhwebane insists and says go and pursue this matter or the legal principles or the legal strategy as I’m giving to you now regardless of what has been stated, that could be a defence to simply carrying out the instructions of my client,” Zikalala said.
“But they still said let us continue, which I suspect would have been the case also with Advocate Mkhwebane”
Mpofu has been embroiled in a few controversial arguments.
In July 2022, a Legal Practice Council investigating committee cleared him of wrongdoing for telling advocate Michelle le Roux and Pravin Gordhan to shut up.
The incident relates to the cross-examination of the late Gordhan in March 2021, in which Mpofu – representing former South African Revenue Services commissioner Tom Moyane – told Advocate Le Roux to “shut up” during a heated exchange over her questioning of the minister.
Le Roux was representing Gordhan during the proceedings.
The committee majority agreed with Mpofu that telling someone to shut up in isiXhosa would not be considered rude.
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