Text of the complaint by Dali Mpofu SC to the Legal Practice Council CEO Charity Nzuza, against Chairperson of the General Council of the Bar of South Africa Craig Watt-Pringle SC, 7 April 2021

COMPLAINT REGARDING AND REPORTING OF UNPROFESSIONAL CONDUCT ON THE PART OF MR CRAIG WATT-PRINGLE SC

1. The purpose of this letter ls to lay a formal complaint against a registered legal practitioner, Advocate Craig Watt-Pringle SC, who is also a member of the Johannesburg Society of Advocates and the Chairperson of the General Council of the Bar of South Africa for committing the various breaches of the Code of Conduct, more particularly by performing the acts which, individually and/or cumulatively, amount to unprofessional conduct or misconduct referred to below.

THE ALLEGED MISCONDUCT

2. The misconduct was committed on three separate occasions, on radio, television and in a meeting of the GCB Executive Committee.

A: The radio interview

3. In the morning of 26 March 2021, in the course of an interview with an anchor named Stephen Grootes on SAFM, Adv Watt-Pringle SC, in his capacity as the Chairperson of the GCB and as a legal practitioner:

Prejudged the issues by passing judgment and stating that my conduct "fell way below the standard expected of any advocate and particularly Senior Counsel who are held to a higher standard".

3.2 Introduced irrelevant gossip to the conversation to the effect that it had been a matter of comment among his (unnamed) "colleagues that on is at a loss whether (Mr Mpofu) is the politician or the advocate."

3.3 Stated as a "fact" the false information that I "held the second highest position in the EFF (and am) still, as far as he was able to ascertain, part of the National Command Council of the EFF which had allegedly targeted Minister Pravin Gordhan''. In fact, I relinquished all official positions in the EFF ln 2019 and I am an ordinary member thereof.

3.4 Falsely accused me of spewing ·'vitriol" which is uncharacteristic of the way that advocates are required to and generally behave.

3.5 Wondered aloud and suggestively as to the extent to which I was "playing to the gallery of my (alleged) political following as opposed to "doing my duty by (sic) my client, Mr. Tom Moyane." (In this regard, Mr. Moyane has agreed to testify to the contrary, if called upon to do so by the LPC).

3.6 Suggested that my alleged conduct may complicate my suitability for my current role as a representative of Advocates for Transformation and/or the GCB on the Judicial Services Commission. This has the intended effect of creating confusion and undermining the important work I do at the GCB.

3.7 Inexplicably promised that if a complaint had not yet been lodged, “it will be”, thereby suggesting that the complaint was internally instigated or that there was a plan to do so.

B: The television interview

4. In the afternoon of 26 March 2021, in the course of a television interview with the Newsroom Afrika News Channel, Adv Watt-Pringle SC:

4:1 ln breach of Rule 61 commented publicly and gave opinions about matters which are pending before the Professional and Fees Committee of the Johannesburg Bar Council for purposes other than genuinely guiding public understanding of the issues arising in the course thereof and in so doing prejudged the case.. In so doing, he was also undermining the structures and leadership of the Johannesburg Society of Advocates, which was seized with the matter.

4.2 Peddled a false narrative about another member, namely me, and deliberately misrepresented and twisted the objective facts so as to fit or suit that false narrative of what transpired on 23 March 2021. This included undue exaggeration by adding further false and irrelevant information presented as facts.

4.3 Uttered defamatory remarks about me.

4.4 Falsely misrepresented his own existent conflict of interest and/or disqualification inherently arising from his official position as the Chair of the GCB. ln the process he contradicted his earlier utterances made at the separate radio interview referred to above, in which he had admitted that the GCB was the ultimate appeal body.

4.5 In instinctively and dishonestly siding with Ms Le Roux, he was driven by a racist motive and/or other arbitrary form of discrimination and/or bias. In so doing, he also undermined the institution of seniority at the Bar, casting serious doubt as to its continued usefulness and retention. Ironically, Ms Le Roux is an applicant for the future conferment of silk status and her application is reportedly serving before the Minister of Justice.

4.6 Displayed arrogance and/or gross insensitivity by falsely accusing me of ·”pulling the race card", thereby trivialiszing or denying my own agency and genuine subjective feelings of perceived discrimination, discriminated against me on the grounds of my race or other arbitrary prohibited ground.

C: The GCB meeting

5. Within approximately 24 hours after the two interviews and on 27 March 2021, Adv. Watt-Pringle SC, acting as aforesaid and in the continued pursuance of his personal and/or racist vendetta against me:

5.1 proposed at a meeting of the GCB that I should be removed from my position in the Judicial Services Commission;

In so doing, also invoked gossip and irrelevant false allegations about what supposedly happened in the Marikana Commission which was instituted about eight years ago,

SUPPORTING EVIDENCE

6. in support of the complaint(s) set out above, I attach hereto transcripts of the SAFM and Newsroom Afrika Interviews marked "CW1" and "CW2", respectively. Should it become necessary, and in due course, I will also supply the audio-visual evidence of the two interviews as well as any other information which may become necessary or which may come to hand. In support of what transpired at the GCB meeting, the necessary witnesses will be called.

7. For the sake of completion and to provide necessary context, I also attach hereto marked "Bundle X", a bundle of documents comprising of my response to a related complaint lodged with the Professional Committee of the Johannesburg Bar Council, as well as my response thereto, which bundle includes the relevant portions of the transcripts of the proceedings of 23 March 202. The relevant audio-visual recording will also be supplied in due course.

8. May I also cross--refer to my separate complaint lodged with the LFC against Advocate Michelle le Roux which also forms part of Bundle X.

9. I reserve my rights to amplify the above information as and when necessary if further information becomes available.

SYNOPSIS

10. The above conduct viewed individually and/or cumulatively constitutes multiple breaches of the applicable Code of Conduct and clearly calls for an investigation and inquiry.

11. l look forward to hearing from you and/or providing any further clarificatory information which may assist the envisaged process.

Your faithfully

DC MPOFU SC

Member of:

The Johannesburg Society of Advocates and PABASA

***

Reply by Craig Watt-Pringle SC to Dali Mpofu, 14 May 2021

RESPONSE TO COMPLAINTS MADE BY MPOFU SC AND AA

REFERENCES: 2021 11P AND 2021 12-1P

1 I refer to the letter dated 8 April 2021 received from the professional sub-committee of the Johannesburg Bar Council to which is attached a letter of complaint from Dali Mpofu SC addressed to the Legal Practice Council dated 7 April 2021.

[CUT]

5 In summary, the allegations of fact contained in Mpofu SC’s complaint do not sustain a complaint of unprofessional conduct and appear to constitute a text-book example of Mpofu SC using attack as a means of defence in the related complaint against him.

6 Mpofu SC makes the allegation that I acted inter alia out of “racist motive” in “siding with Michelle le Roux” but offers no factual basis for that conclusion. Mpofu SC well knows how serious it is to accuse any person, let alone a senior colleague currently serving as Chair of the General Council of the Bar (“GCB”), of racism. Yet this accusation is recklessly made, is scandalous and made with the intention of casting doubt on my legitimate criticism of Mpofu SC’s own disgraceful conduct. For the record, the allegation is denied. My reasons for expressing myself as I did appear below.

7 Mpofu SC, without the necessary elaboration, references “Rule 61”, which I assume to be paragraph 61 in the Legal Practice Council’s “Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities”. It is a long paragraph with many sub-paragraphs. I will quote those I consider relevant to the complaint.

8 First, I refer to the sub-paragraphs potentially relevant to the complaint against me:

“61 Public comment by legal practitioner

61.1 A legal practitioner shall not comment publicly nor publish any opinions about matters which are before a court or other tribunal in which the litigation process is incomplete, except for the purposes of guiding public understanding of the issues that have arisen or may arise in the course of such proceedings.

61.2 A legal practitioner may publicly express opinions about any question of law or prospective law provided that the opinion is not likely to be construed as prejudging an actual case before the courts or any tribunal at that time.”

9 Paragraph 61.1 clearly contemplates public comment by a legal practitioner on the merits of a matter before a court or tribunal, and not about the (mis)conduct of an advocate in those proceedings. This is even more clear if one has regard to paragraph 62.2. This rule therefore has no application to the complaint against me. Even if it does, my comments would in that event fall within the exception in paragraph 62.2.

10 Furthermore, by the time I commented, Zondo DCJ had publicly expressed himself on Mpofu SC’s conduct, which is the only issue I referred to. I did not refer to any live issue pending before the Commission.

11 Inter alia the following sub-paragraphs are relevant to Mpofu SC’s conduct, on which I was asked to comment to the media and did so:

“61.3 Professional etiquette

61.4 …

61.6 Legal practitioners shall deal with the judicial officer, court staff and all other persons in court with civility and respect.

61.7…

61.9 Legal practitioners shall not allow any ill-feeling between litigants or legal practitioners to interfere with the civil and professional conduct of the matter.

61.10 Legal practitioners shall not indulge in personal remarks about opposing legal practitioners or witnesses, whether in court or out of court, and shall not allow any antipathy that might exist between the legal practitioner and the opposing legal practitioners personally to intrude upon the conduct of the matter.”

12 Before dealing with the complaints in detail, I set out the facts which give context to the comments publicly made by me, which form the basis of the complaint.

13 This matter relates to the incident on the evening of Tuesday 23 March 2021, in which Mpofu SC displayed contempt for the Honourable Deputy Chief Justice Raymond Zondo (“Zondo DCJ”) during proceedings before the State Capture Commission in which Mpofu SC was representing his client, former SARS Commissioner, Mr Tom Moyane. It is a matter of record that he told our colleague Michelle Le Roux to “shut up” and also told the witness, Minister Pravin Gordhan, to “shut up” when the latter attempted to address Zondo DCJ.1 Mpofu SC also failed to heed repeated instructions from Zondo DCJ to sit down and allow Le Roux to continue addressing the Chair of the Commission.

14 Le Roux is a member of the Johannesburg Bar, and at the time of the incident had been recommended for silk but still carried junior status. The Bar has set its face against misogynist conduct in a profession that is male dominated and in which gender discrimination is a scourge that actively proscribed.

15 It is furthermore a well-known principle that opponents in a judicial forum are equal before the forum regardless of seniority. If an opponent were entitled to “pull rank” during the proceedings based on seniority, it would lead to obvious prejudice to the client of the junior member. Mpofu SC does not appear to adhere to this principle, as, in his complaint against le Roux, he took exception to Le Roux asserting her right to speak, based inter alia on her junior status relative to his.

16 His conduct, in my submission, constituted bullying of a junior woman colleague, intended to impair her standing as a colleague worthy of being treated with dignity and respect.

17 This entire episode was, to Mpofu SC’s knowledge at the time, televised live on national television, and subsequently streamed on YouTube and multiple other platforms. His conduct immediately became the subject of numerous media reports and social media commentary, most of it viewing Mpofu’s conduct as self-evidently unbecoming a member of the Bar, let alone a senior member and former leader of the Johannesburg Bar.

18 I have no doubt that by his conduct, Mpofu SC has sullied his own name and reputation in the eyes of any person who holds dear the reasonable standards of conduct of officers of the Court. For that Mpofu SC has only himself to blame. His attempts to suggest that I have expressed public opinions on the matter must be seen in context. Mpofu SC’s conduct is a matter of public record, and of public interest, widely debated in all forms of media and, to my knowledge, by members of the legal profession.

19 His conduct was clearly seen for what it was by the second most senior judge in the country, who experienced and witnessed it first-hand. Two days after the incident, on 25 March 2021 Zondo DJP, in his capacity as the chairperson of the State Capture Commission of Enquiry in a televised address stated the following concerning Mpofu SC’s conduct:

“I want to make it clear that in any meeting or forum where there is a chairperson, it is the duty of that chairperson to make sure that the proceedings of that meeting or forum are conducted in a smooth manner. That is also my duty as chairperson of this commission. It is my right and obligation to make sure that I allow somebody who needs to be allowed the opportunity to speak, to speak but it is my right to determine when they may speak. It is my right to determine how long they may speak. It is my right to determine when they must stop speaking so that if somebody else a chance also that the proceedings may continue. Mr Mpofu was told by me to sit down at a certain stage. It was the end of the proceedings. He was not the first legal practitioner that have I told to sit down in this commission. I have a clear recollection that I have told Mr Barrie SC who represents Mr Koko in this commission a few times to sit down. I remember that I have told Miss Mbanjwa who represents Miss Mamela in this proceeding to sit down and I think I have told a certain attorney also whose name I cannot remember to sit down. It is my duty to make sure that these proceedings, the proceedings of this commission continue in a smooth manner and where I need to ensure that somebody speaks, I will decide that that person will speak, and I will allow him or her but where I decide that that person has said enough or that that person should be heard at another time, I am the one who will decide that. No legal practitioner, including Mr Mpofu, has the right to begin to tell any other person in this commission to “shut up”. That power belongs to the chairperson of commission and even I will not use the words “shut up”. That conduct is unacceptable to this commission and it is important that the public and other legal practitioners should know that this conduct is not acceptable in this commission.”2

20 With respect, no legal practitioner can reasonably take issue with this statement, nor can Zondo DJP be accused of racism against Mpofu SC for publicly stating that his conduct is unacceptable.

21 During that week, after the incident involving Mpofu SC in the state capture commission, I personally heard callers to Radio 702 asking whether this is the standard of conduct expected of senior counsel and of a person representing the GCB on the Judicial Service Commission. It is a legitimate question and one which concerns the public, as well as the GCB specifically, as to whether a person showing such a lack of respect for the dignity of a senior judge, of judicial proceedings, and for his colleague, ought to be the representative of the advocate’s profession in deciding which candidates are fit for judicial office.

22 In my submission the acceptability of counsel telling other counsel in open forum to “shut up” is scarcely a matter for serious debate, and any suggestion by Mpofu SC to the contrary is simply a dissemblance.

23 Mpofu SC is aware of the standards of conduct expected of advocates, and of senior counsel, who are held to a higher standard. Senior counsel are expected to be leaders, role models to juniors, and are almost automatically considered suitable for acting appointments on the bench.

24 Mpofu SC is a prominent member of the Johannesburg Bar, having fairly recently been Chairperson of the Johannesburg Bar Council. He is a prominent member of the legal fraternity known for appearing in high-profile cases and his is a household name here and internationally. Mpofu SC is also publicly known for his position within the political party, the Economic Freedom Fighters (“EFF”), as well as earlier his role in the ANC Youth League and at the SABC.3 His conduct is therefore a matter of considerable public interest.

25 Following the televised statement of Zondo DJP on 25 March 2021, I was approached by the producers of SAFM’s Sunrise show hosted by senior journalist Stephen Grootes. I was told that I would be requested to comment on the televised statement of Zondo DJP, as well as the question whether Mpofu SC’s political profile and frequent appearances in matters in which the agenda of the EFF is openly pursued, potentially conflict with his duties as counsel.

26 This is again a matter on which any member of a GCB constituent Bar should have a clear view, but one with which the general public is not necessarily familiar. It is important that they do, especially in relation to Mpofu SC’s conduct and the context in which it took place.

27 Paragraph 58 in the Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities in relevant part reads as follows:

“58 Conflicts of interests involving legal practitioners

58.1 A legal practitioner shall guard against becoming personally, as distinct from professionally, associated with the interests of the client.

58.2 …

58.9 A legal practitioner shall not accept a brief if he or she has any form of relationship, including a family relationship, with the client or an opposing party which compromises, or which might reasonably be expected to compromise, the legal practitioner's independence.”

28 The fact that Mpofu SC no longer holds high office in the EFF is therefore not decisive of the question whether he would reasonably be seen to be serving the interests of the EFF is the manner in which he conducted himself towards the Commission, Zondo DJP, Minister Gordhan and his counsel, le Roux.

29 As Chair of the GCB, I am frequently called upon to comment on matters affecting the rule of law, the administration of justice, the dignity of the courts, abuse of judges particularly by politicians, the advocates’ profession, the state of the National Prosecuting Authority and similar related matters. The issues which Stephen Grootes wanted me to comment on fall within a number of these categories.

30 Mpofu SC’s conduct warranted the public dressing down which he received from Zondo DJP. In the circumstances, I had anticipated that Mpofu SC would on reflection accept that he had let himself and the profession that he represents down and would show some contrition. Instead, while waiting to commence my interview, I heard Stephen Grootes reading out Mpofu SC’s Tweet in response to Zondo’s DCJ’s statement, in which he in effect told his detractors (including Zondo DCJ) to “bring it on”. He then played the victim, raising the country’s history of racial discrimination against black people.

31 In my opinion, Mpofu SC’s conduct can in no way be excused based on past racial injustices. There is simply no rational connection between Mpofu SC’s conduct and racial prejudice. I therefore observed that, disappointingly, Mpofu SC appeared to have played the “race card” instead of accepting that his conduct fell short of the Bar’s professional standards (or dealing with the merits of the dressing down that he received.) Playing the race card is usually associated with the absence of a defence.

32 Mpofu SC has a long history of appearing in matters in which his clients and their causes identify closely with EFF political stances and opposition to particular individuals. The fact that he was acting for Mr Tom Moyane in relation to the cross- examination of Minister Gordhan is a case in point. There have been others. The EFF has for some time made no secret of its antipathy for the Minister and has used various tactics, including the judicial process, to discredit him. (I am not concerned with whether they are justified in doing so. That is a political issue, not relevant here.)

33 When counsel identifies too personally with his (or her) client’s cause, he is more likely to act at variance with his duty to the Court, which is why our rules proscribe counsel from taking briefs which may embarrass them, such as when counsel may be conflicted. In my view, this could explain Mpofu SC’s contemptuous reaction to what he perceived as a procedural injustice, namely being interrupted when he was making an objection. (I do not agree that he had a good basis to complain, but I accept that he thought so at the time. Even if he was correct, he had no right to remain on his feet, addressing his opponent, the witness and Zondo DCJ when he was repeatedly told to take his seat. Zondo DCJ made this point in his address to the media.)

34 Mpofu SC’s political profile also explains his public defiance towards Zondo DCJ’s dressing down.

35 I accurately referred to Mpofu SC’s previous position as the second most senior office bearer in the EFF and qualified my erroneous reference to Mpofu SC’s current leadership position in the EFF by the words “as far as I have been able to ascertain”. I had done a quick internet search just before the Grootes interview and understood that Mpofu SC was still part of the Command Council of the EFF.

Wikipedia still today states as follows:4 “Dali Mpofu

From Wikipedia, the free encyclopaedia

Dali Mpofu (born Christopher Daluxolo Mpofu in 1962 in East London) is a South African lawyer and politician who is the former National Chairperson of the Economic Freedom Fighters and have (sic) been serving on the party's central command team since 2013.[1][2][3][4]”

36 Whether Mpofu SC currently holds office in the EFF is not strictly relevant, as he remains a prominent member and is strongly identified with the EFF and its senior leadership echelon.

37 Incidentally, I note from Mpofu SC’s complaint against le Roux, that she is alleged to have stated in judge’s chambers that Mpofu’s cross-examination of Minister Gordhan amounted to political grandstanding. I was unaware of this at the time of my media interviews, but it is telling that two members of the Johannesburg Bar independently came to this conclusion concerning Mpofu SC’s performance in such matters. This is to my knowledge an oft-mentioned sentiment both amongst our colleagues at the Bar and amongst lay people as well. Since many of these matters are televised, this is not a matter of uninformed gossip, but a matter of opinion based on access to Mpofu SC’s actual performance in various tribunals.

38 Following my interview on SAFM Sunrise, I was approached by several media organisations for interviews. I regard it as my duty to respond positively to these requests from the media as part of my function as Chair of the GCB, inter alia so that the GCB is seen to be adopting a stance on matters of principle and educating the public in relation to the above-mentioned issues.

39 I stand accused of pre-judging the merits of the complaint already made to the Johannesburg Society of Advocates (“JSA”), of bias, and of being motivated by racism towards Mpofu SC.

40 Firstly, I had not seen the complaint made to the JSA. I simply knew that one had been made. Had it not been made, I was going to make it myself, because in my view, Mpofu SC’s conduct warrants sanction, so that neither the public nor our junior members can be misled into thinking that his conduct is acceptable and may be emulated with impunity. I also received numerous enquiries from colleagues and lay people as to whether Mpofu SC’s conduct was going to remain unsanctioned, a reasonable question.

41 Second, I stated that Mpofu SC’s conduct was unacceptable and fell below the standard expected of counsel and of senior counsel in particular. As I stated above, if Mpofu SC suggests otherwise, he is simply dissembling. This is not a matter of pre-judging the complaint as I am not called upon to decide the complaint. I am simply expressing my opinion on Mpofu SC’s conduct.

42 Third, it is not unprofessional conduct on my part when I state the obvious. Most alleged misconduct does not occur on live national television. Mpofu SC knew he was on national television when he behaved as he did. He can scarcely be heard to complain that his conduct has been publicly condemned. It is still up to the professional bodies tasked with assessing the complaint against Mpofu SC and his defence, if any, to do so, affording him due process. Since mine is scarcely a voice in the wilderness, it will have no more weight than the barrage of condemnation publicly voiced by others.

43 Fourth, Mpofu SC suggests that I should have held my peace because the GCB is the appellate body from disciplinary decisions of the JSA. Mpofu SC as a senior member with long-standing involvement in Bar matters would know that neither the GCB Executive Committee, which I chair, nor the GCB, which meets only once a year, decide appeals to the GCB. Applications for leave to appeal are considered on paper by a retired judge or advocate from a Bar other than the member’s Bar, whom I would ordinarily appoint. Appeals are decided by a panel which I would also usually appoint. I would not, however, make such appointments if I would be conflicted in doing so. Therefore, any complaint of conflict is both premature, addressed to the wrong forum and unrelated to any alleged unprofessional conduct.

44 Finally, I deal with my comments at the GCB Exco meeting 27 March 2021. Mpofu SC was nominated to the JSC by the GCB at the instance of Advocates for Transformation (“AFT”). Mpofu SC remains a GCB nominee. His conduct is relevant to his suitability to carry the flag of the GCB in the JSC and indeed to his suitability as a commissioner. I make no apology for raising this issue for discussion at the GCB meeting. Indeed, I regard it as my obligation to do so. The GCB has a clear interest in the issue, and I had a legitimate reason to raise it. As it happens, no decision was sought by me, or taken at the meeting.

45 The complaint, on this score, is similarly without substance.

46 Mpofu SC accuses me of acting out of a racist motive and/or arbitrary discrimination and/or bias.

47 My comments to the media represent my genuine opinions of Mpofu SC’s conduct. My motive for acceding to the interviews are fully explained above. There is no basis on which to infer racism, discrimination of any kind, or bias. I aligned myself with the comments of Zondo DCJ.

48 I deny Mpofu SC’s reckless and baseless accusations against me and suggest that in doing so he is acting in a manner which brings the advocate’s profession into disrepute. His comments are the more egregious because he is attacking me, without any objective or bona fide basis, for doing my duty to the profession.

49 In the circumstances, I submit that both Mpofu SC’s complaint and AA’s complaints are without merit and should be dismissed.

C E WATT-PRINGLE SC

Footnotes:

1 Mpofu SC asserts in his complaint against le Roux that he did not tell her to “shut up”, but that he said that she must shut up, addressing Zondo DJP. That is debatable, but on his version even more dismissive and insulting towards le Roux, than addressing her directly. It does not lessen the gravity of his conduct. It would also be contemptuous of Zondo DJP, to address him in this way.

2 https://www.youtube.com/watch?v=SlzPYX3b_p8 (our emphasis).

3 Mpofu SC has a Wikipedia page dedicated to him which spells out his eminence as a public figure: https://en.wikipedia.org/wiki/Dali_Mpofu.

4 https://en.wikipedia.org/wiki/Dali_Mpofu