INVESTIGATING COMMITTEE REPORT

11 OCTOBER 2021

INVESTIGATING NR: - IC. 4

LEGAL PRACTITIONER: - ADV DALUXOLO CHRISTOPHER MPOFU

COMPLAINANT: - THE LEGAL PRACTICE COUNCIL

and

LEGAL PRACTITIONER: - ADV MICHELLE LE ROUX

COMPLAINANT: - ADV DALUXOLO CHRISTOPHER MPOFU

and

LEGAL PRACTITIONER: - - ADV CRAIG WATT-PRINGLE

COMPLAINANT: ADV DALUXOLO CHRISTOPHER MPOFU

INVESTIGATING COMMITTEE REPORT

11 OCTOBER 2021

1.

In accordance with the provisions of section 37 of the Legal Practice Act 28 of 2014, the committee was tasked with deliberating on these matters after it was referred to it by the Legal Practice Council (LPC) for investigation. The Committee considered, inter alia, the written complaints with annexures together with the replies filed in relation thereto.

2.

The committee in enjoined by Rule 40 of the South African Legal Practice Council Rules made under the authority of sections 95(1), 95(3) and 109 (2) of the Legal Practice Act 28 of 2014, to investigate allegations of misconduct, which rules were published in the Government Gazette of 20 July 2018. Rule 40.1 provides that:

When a complaint or allegation of misconduct against the respondent is referred to the investigating committee, that committee must investigate the complaint or allegation or cause the complaint or allegation to be investigated by the legal officer or by the legal practitioner appointed by the Council for that purpose.

3.

The complaints has its genesis in evidence of Minister Pravin Gordhan, being led at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State. The Deputy Chief Justice, Judge Zondo, is the chairperson of this Commission of Inquiry.

4.

The committee did not have to reach far for video footage of the incident giving rise to the complaints. A video of the incident is uploaded onto YouTube, a social media platform and is available at https://www.youtube.com/watch?v=mRBx9uCe90. The committee was satisfied that it could consider this footage as part of its investigations, owing to Rule 40.1 and 40.2 which reads:

40.1 When a complaint or allegation of misconduct against the respondent is referred to the

investigating committee, that committee must investigate the complaint or allegation or cause the complaint or allegation to be investigated by the legal officer or by a legal practitioner appointed by the Council for that purpose.

40.2 For purposes of carrying out its responsibilities in terms of rule 40.1 the investigating committee may:

40.2.1 take any steps which are not prohibited by law to gather information with regard to the complaint or allegation.

5. The events can be summarized as follows:

5.1 In the video, Adv Michelle le Roux is questioning Minister Pravin Gordhan, who

is a cabinet's minister. Adv Le Roux, who was seemingly busy with te­examination, was putting it to Minister Gordhan, that a great deal of time was spend (in cross examination) on the allegations that Minister Gordhan is racist.

In this context Adv Le Roux asked the minister to explain, given the Minister's struggle background and his incarceration and torture...

5.2 The chairperson, Judge Zondo interrupted Adv Le Roux, citing that Minister Gordhan explained the issue 'quite well'.

5.3 Adv Le Roux then replied to Judge Zondo, stating that Minister Gordan testified

that he is not racist but that she wishes to get on record how he, Minister Gordhan, feels about the racist allegations.

5.4 Judge Zondo had just commenced a sentence when the witness, Minister Gordhan, asked if he 'may make a brief comment, to conclude the matter.

5.5 Adv Dali Mpofu then intervened and addressed the commission. He asked the commission if he may object before Minister Gordhan makes any comment.

5.6 Before the commission could deal with the objection, Adv Le Roux said that she

wishes to explain the question.

5.7 Judge Zondo said 'ok'.

5.8 Adv Le Roux then explained that Mr Moyane makes allegations...

5.9 Adv Dali Mpofu then interrupted Adv Le Roux, citing that he has the floor, that he 'cannot stand this', that 'this' cannot be happening for a third time and that Ms Le Roux must shut up when I am speaking. Whilst Mr Mpofu was making these submissions, Judge Zondo was trying to say something to Mr Mphofu (obviously to regain control of the situation). Notwithstanding this, Adv Mpofu goes on to complete his submission.

5.10 Judge Zondo then addresses Adv Mpofu and says that he just want to hear... Almost at the same time, Minister Gordhan exclaims sounds of surprise saying something to the effect of "Yo!!!'. This was in response to Adv Mpofu telling Judge Zondo that adv Le Roux must shut up when he is speaking.

5.11 Adv Mpofu then says: "You too Mr Gordhan'.

5.12 Judge Zondo again tried to address Mr Mpofu, but Mr Mpofu went on to address Minister Gordhan, saying that he is still on the floor and that Mr Gorhan: 'you also shut up'. Note: Some parties believe that this third 'shup-up' remark was addressed to a member of the public or an unknown person, but the committee, although not sure, is of the view that it was to Minister Gorhan. Not much turned on this third 'shut-up', in our decision making.

5.13 Judge Zondo then thereafter says `no no Mr Mpofu, I am in charge here, please sit down, let me hear first...'.

5.14 Adv Mphofu then interrupts Judge Zondo saying: 'But I'm still talking chair, she butted

5.15 Judge Zondo then interrupts Adv Mpofu saying: 'yes...she had not explained...'.

5.16 Whilst judge Zondo was still addressing adv Mpofu, adv Mpofu interrupts judge Zondo asking: But why must I sit down?'

5.17 Judge Zondo then answer the question as follows: 'I want to hear her explanation, then I will hear you…’

5.18 Adv Mpofu was steadfast saying: Chair, I am still speaking, why must I sit down?'

5.19 Judge Zondo, by now much firmer, answer this question, stating that he, Judge Zondo, is in charge and he again ask adv Mpofu to sit down. Judge Zondo said: '1 will hear her and then I will hear you'.

5.20 To this Adv Mpofu replies: 'Chair, maybe then we should leave because if we are not allowed to speak...and you allow interruptions...'

6.

6.1 The above description of the events is an informal description of what transpired

and it is aimed at giving context to the numerous complaints that followed therefrom. It is not a transcription of the proceedings and it does not capture any non-verbal communication.

6.2 The committee endeavours to describe a very busy engagement, and our attempt was to capture it as accurately as possible, without more. At time, the role players would speak simultaneously.

6.3 We also add that in considering the complaints that we are seized with, we did

not only consider this short video clip in isolation. We meticulously studied voluminous documents, including a transcription of the events, and our focus was on the written submissions from all the parties concerned.

7.

The complaint against Adv Dali Mpofu

The media subsequently reported about the incident. Some of these articles that came to the attention of the Legal Practice Council was:

7.1 F Haffajee 'Fact-checking Deli Mpofu: Michelle le Roux is a recommended silk

and SARS has set aside dodgy 'rogue unit' report', 24 March 2021, Daily Maverick.

7.2 J Limpitlaw 'Dali Mpofu's disrespectful 'shut-up' that reverberated across the

nation' 24 March 2021, Daily Maverick.

7.3 A Mthethwa 'Dali Mpofu gets a stern rebuke while Van Loggerenberg explains how SARS 'rogue unit' narrative gathered steam' 26 March 2021, Daily Maverick.

7.4 On 26 March 2021 on SAFM, anchor Stephen Grootes interviewed Adv Watt-Pringle, and commenced by informing his listeners that Judge Zondo said that Adv Mpofu did not have the right to tell Minister Gordhan or adv Michelle le Roux to 'shut up' and that this language was unacceptable at the Commission. Judge Zondo was heard in a soundbite saying:

`On Tuesday evening Mr Mpofu, who was, as I have said, appeared for Mr Tom Moyane, told counsel for Mr. Gordhan to 'shut up'. He also told Mr Gordhan to 'shut up'. I have never heard any lawyer in any court proceedings or in any commission or forum tell another lawyer to `shup up or a witness'’

7.5 This sound bite was from a televised public address by Judge Zondo on 25 March 2021, where judge Zondo also said, inter alia, that:

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 ...forum are conducted in a smooth manner.

and

It is my right and obligation to make sure that I allow somebody to speak 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 (sic).

and

Mr Mpofu was told by me to sit down at a certain stage. It was the end of the proceedings.

7.6 In what had been described as a response to Judge Zondo, Adv Mpofu tweeted the following on 25 March 2021:

`I'm so available for this fight, for the dignity of black people and black professionals, specifically those who are willing to be free from mental slavery. After 369 years we have run out of other cheeks to turn. Racism and its apologists must and will fall. Let's get it on.'

7.7 On 26 March 2021, Adv Watt-Pringle participated in a televised interview regarding the incident on Newsroom Africa.

8.

Pursuant to these publications, the Legal Practice Council's legal officer, was moved to place the conduct of Adv Dali Mpofu before an investigating committee. The legal officer was duty bound to do so and is specifically enjoined by Rule 39 of the South African Legal Practice Council Rules made under the authority of Section 95(1) of the Legal Practice Act 28 of 2014 and published in the Government Gazette No 41 781 of 20 July 2018 [Hereinafter 'the Rules],

9. Rule 39 is apposite:

39.1 If an allegation of misconduct against the respondent comes to the attention of the executive

officer or the legal officer, he or she MUST refer the allegation to the investigating committee if‑

39.1.1 the allegations are in the public domain and he or she on reasonable grounds

suspects that a respondent may be guilty of misconduct.

10.

In addition, Ms Bianca Arnold (who calls herself a 'concerned citizen') informed the LPC that she was 'perturbed' by Adv Mpofu who would tell Adv Le Roux and Minister Gordhan, on live television and in front of the Deputy Chief Justice, to 'shut up'. Sh submitted to the LPC that 'it is also not acceptable to treat any woman like that’ and that the conduct of Adv Mpofu has caused some to think 'that it is correct to treat woman like that’.

11.

Adv Mpofu requested, in a letter addressed to the LPC, dated 15 May 2021, that the allegations against him, brought by the LPC, owing to alleged misconduct being in the public domain, should be heard in a consolidated fashion, along with the complaints that he, Adv Mpofu laid against Adv Watt-Pringle and Adv Michelle le Roux.

12.

This committee acceded to this request and we dealt with all three complaints in a consolidated fashion. We will return to the conduct of Adv Mpofu, but will consider the complaints against adv Michelle le Roux next.

13. The Complaint against Adv Michelle le Roux

On 7 April 2021, Adv Mpofu laid a complaint against Adv Le Roux, under the auspices of Rule 1.6 of the Rules of Ethics for the General Council of the Bar. A similar rule can be found in the Legal Practice Council Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities [published in Government Gazette No 42364 of 29 March 2019 [Hereinafter the Code of Conduct']. In short, legal practitioners are enjoined by the Code of Conduct to report unprofessional conduct of their colleagues to the LPC.

14.

The complaint by Adv Mpofu against Adv Le Roux, dated 7 April 2021, can be distilled to the following:

14.1 She made hurtful, insulting and disparaging and/or demeaning remarks against Adv Mpofu, by referring to his cross examination as 'political grandstanding'.

14.2 In calling the cross examination 'political grandstanding', Adv Le Roux disrespected a colleague who is a senior counsel.

14.3 That she deliberately and repeatedly and/or unduly interrupted Adv Mpofu, while he was clearly still in the process of articulating an objection.

14.4 She broke protocols regarding how and when to respond to objections.

14.5 That she was generally condescending, demeaning and provocative towards Adv Mpofu, which Adv Mpofu experienced as racist and a typical experience of black practitioners.

14.6 She failed to control her witness by allowing the witness to make inappropriate remarks.

15

Adv Le Roux submitted a reply to the complained. This written reply is dated 2 June 2021. Adv Le Roux concedes that she called the cross examination of Adv Mpofu 'political grandstanding'. She submits that the phrase 'political grandstanding' must be assessed in the context of the history of Mr Moyane and Minister Gordhan's evidence before the commission. She denies that the phrase was a personal attack or disrespectful.

15.

We agree with Adv Le Roux that the phrase is one of many available in a repertoire of phrases, The phrase 'political grandstanding' when considered in context and against the factual background cannot invoke a breach of the Code of Conduct. Adv Le Roux used the phrase in an endeavour to convey a point to the chairperson, and we are of the view that it was not personal or said to induce hurt or prejudice. The committee hold the obiter dicta view that there was nothing racist on the part of Adv Le Roux or misogynous on the part of Adv Mpofu. The altercation would in our view still have transpired, irrespective of race or gender. There is also no merit in the complaint that Adv Le Roux disrespected the seniority and omitted to follow the protocols when opposing counsel makes an objection. It was clear that she was still articulating the question and was in the process of explaining the question. The mere fact that she stood her ground against a senior counsel does not elevate her conduct to disrespect or a disregard for seniority. If such line of thinking were to be acceptable, any junior counsel would have to bow the seniority of a silk, without more. Even if we are wrong, established traditions and rules must be subjected to scrutiny in the public interest: De Freitas v Society of Advocates of Natal 2001(3) SA 750 (SCA) pare ES} at 762B.

17.

We could find no evidence that Adv Le Roux was condescending, demeaning and provocative. Legal practitioners will, as an occupational hazard, be confronted with derision and affronts of their adversary, as well as the indifference or apparent disapproval of an unimpressed presiding officer. Sometimes it is inevitable and unavoidable to make an adverse comment, to make a competent submission. Counsel can never let the poison of rancour sully their countenance merely because it is imposed by a senior counsel. To expect that of (junior) counsel will untenable and flies in the face of Article 3.3 in the Code of Conduct which require of a legal practitioner to treat the interest of their client as paramount.

18.

We direct that the Legal Practice Council record that Adv Le Roux gave a reasonable explanation for her conduct, as contemplated by Rule 40.5.2.2 of the Rules of the South African Legal Practice Council.

19.

Complaint against adv Watt-Pringle

Adv Mpofu also lodged a written complaint with the LPC against Adv Watt Pringle, dated 7 April 2021. This complaint can be distilled to the following:

19.1 That on 26 March 2021, Adv Watt-Pringle, in an interview with journalist Stephen Grootes, on SAFM, in his capacity as chairperson of the bar, prejudged the issue, by submitting that the conduct of Adv Mpofu's conduct 'fell way below the standard expected of any advocate and particularly Senior Counsel, who are held to a higher standard'.

19.2 That his colleagues are at a loss whether Adv Mpofu is a politician or an advocate.

19.3 He alleged that Adv Mpofu was spewing vitriol which is uncharacteristic of the way advocates are required to behave generally.

19.4 That Adv Mpofu played to the gallery of his political following as opposed to doing his duty to his client.

19.5 That his alleged conduct may complicate his suitability for his current position

as Advocates for Transformation and/or the GCB on the Judicial Service Commission.

20.

The complaint does not end there. Adv Mpofu further complained that Adv Watt-Pringle, on 26 March 2021, when he participated in a televised interview with Newsroom Africa:

20.1 Breached Rule 61 owing to the fact that he (Adv Watt-Pringle) commented publicly and gave opinions about matters pending before the Professional and Fees Committee of the Johannesburg Bar Council, for purposes other than generally guiding public understanding of the issues arising in the course thereof and in so doing, prejudiced the case.

20.2 Undermined the structures and leadership of the Johannesburg Society of Advocates.

20.3 Peddled a false narrative about Adv Mpofu and misrepresented and twisted the objective facts which included undue exaggeration and adding false and irrelevant information.

20.4 Uttered defamatory remarks about Adv Mpofu.

20.5 Misrepresented his own existent conflict of interest and disqualification arising from his position as chairperson of the General Council of the Bar.

20.6 Dishonestly and instinctively sided with Adv Le Roux, and that he was driven by racist motive and arbitrary discrimination and/or bias. Also that he accused Adv Mpofu of 'pulling the race card which trivialise the agency of Adv Mpofu.

21.

In the third leg of the complaint, Adv Mpofu complain that Adv Watt Pringle, on 27 March 2021, at a meeting of the General Council of the Bar:

21.1 Proposed that Adv Mpofu be removed from his position at the JSC.

22.

Adv Watt Pringle submitted a written reply, dated 8 June 2021. He submits that Adv Mpofu's reaction is a typical one of attack-is-the-best-defence. He submits that there is no factual basis for the allegations that he is racist or that he sided with Adv Le Roux and instead that his criticism of the conduct of Adv Mpofu is legitimate.

23.

As for the alleged breach of Rule 61 (which is in fact article 61 of the Code of Conduct), Adv Watt-Pringle submit that this rule invokes the province of 'comment on the merits' of a case and exclude ancillary issues such as misconduct arising from such proceedings. Adv Watt-Pringle says that even if he is wrong, the matter was no longer live issue and further in the alternative, his communications with the media was for the purpose of guiding the public to understand the issue. As such, he was well within his rights to liaise with the media, so says Adv Watt-Pringle. We cannot find fault with this reasoning.

24.

Adv Watt Pringle noted that Adv Mpofu is a household name and that he is or was in the past associated with the Economic Freedom Fighters ('the EFF'), the ANC Youth League and the SABC and that he represent clients in high profile matters. In light of the public questions regarding the conduct of advocates on radio station such as 702, Adv Watt-Pringle submit that the matter is one of great public interest. Adv Mofu in reply to the answer by Adv Watt-Pringle argues that there is a difference between public interest and the public being curious and interested. That may be so, and we are of the view that the conduct of advocates in general and what they are permitted to do, may very well be a matter that is in the public interest. Either way, Adv Watt-Pringle was entitled to guide the public's understanding of the issues that has arisen in the course of the proceedings, as contemplated by Article 61.1 of the Code of Conduct.

25.

The committee grappled with considering the conduct of Adv Watt Pringle, against the backdrop of the Code of Conduct, specifically Articles 3.14, which require legal practitioners to behave towards their colleagues with integrity, fairness and respect and to avoid insulting or demeaning behaviour and Article 61.6, which require legal practitioners to deal with all persons with respect or Article 61.9, providing that legal practitioners shall not allow ill feeling between litigants to interfere with professional conduct.

26.

Adv Watt-Pringle is the chairperson of the General Council of the Bar. He was invited to the respective media houses to assist the viewers and listeners (members of the public) to understanding the issues. It is inconceivable that the Code of Conduct (art 61.1) permit a legal practitioner from guiding and educating the public regarding `issues that have arisen or may arise in the course of such proceedings', without being candid with the public or without alluding to a single adverse derision or an indifference or apparent disapproval.

27.

We did not have the benefit of a limitation clause in the Code of Conduct, akin to section 36 of the Constitution, to guide on conflicting rules. After careful deliberations, we found that Adv Watt-Pringle did not cross a line and that his comment was fair.

28.

Adv Watt-Pringle submitted that past racial injustices cannot justify Adv Mpofu's conduct and there is no rational connection between Adv Mpofu's conduct and racial prejudice. We are satisfied that the radio interviews and Adv Watt-Pringle's comments at GCB meetings were not racist.

29.

Adv Watt-Pringle also said that he did not prejudge the complaint as he was not called upon to decide the complaint. This too is accepted.

30.

We considered the complaint against Adv Watt Pringle. The committee find, as contemplated by Rule 40.5, read with subrule 40.5.2.2, that Adv Watt Pringle has given a reasonable explanation for his conduct.

31. Complaint against Adv Mpofu

To the extent that we considered Adv Watt-Pringle's written submission, in assessing the conduct of Adv Mpofu, it must be said that we disregarded the similar fact evidence and what transpired during the Marikana commission. We are cognisant that we are not bound by the strict adversarial civil rules of evidence and that we have a duty to heed the rules of natural justice. We are also cognisant that we are not engaged with a disciplinary hearing. That said, we have to be fair towards Adv Mpofu, and it cannot be seen to be fair, to raise the Marikana issue, to prove wrongdoing on Adv Mpofu's part in case. We find this irrelevant to the complaint in question and we disregarded this in toto;°.

32.

We also dismiss any allegation that there was a conflict of interest. We agree with Adv Mpofu's reply (dated 28/5/2021), to Adv Watt Pringle's answer to the complaint. There, Adv Mpofu submitted that it can hardly be said that he pursues a political motivation in his briefing patterns. He accepted instructions for so many political parties and/or their leaders. In our view, the fact that Adv Mpofu acted for Mr Tom Moyane did not place him in any conflict of interest to the extent that the Rules prohibit such a conflict of interests. We are also not convinced that there is any evidence to suggest that Adv Mpofu had associated with the interest of Mr Moyane, or that his conduct described above, was owing to the fact that he was too closely related to the matter. Article 58.1 of the Code of Conduct is apposite.

33.

The allegation by Adv Watt-Pringle that his appointment as counsel in such a politically fraught matter, in my opinion put him in a position of conflict between his political ambitions and his duties as counsel is respectfully unfounded on the facts before us. This is especially so in light of the fact that Adv Watt-Pringle got the political position of Adv Mpofu obviously wrong.

34.

Having said that, the conduct of Adv Mpofu, as described above, is prima facie unprofessional. We have already ventilated the factual history above. To avoid prolixity, we will not repeat the conduct of Adv Mpofu here.

35.

The committee recommend that Adv Mpofu be charged with unprofessional conduct, in breaching the following:

Breach of the Code of Conduct:

35.1 Legal Practitioners shall deal with judicial officers, court staff and all other

persons in court with civility and respect (Article 61.5). This rule must be read with Article 3.3, which provide that a legal practitioner shall treat the interest of their client as paramount provided that their conduct shall be subject to their duty towards the court (Article 3.3.1), the interest of justice (Article 3.3.2) and the maintenance of the ethical standard prescribed by this code and ethical standards generally recognised by the legal profession (Article 3.3.3)

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

35.3 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.

35.4 Behave towards their colleagues, whether in private practice or otherwise,
including any legal practitioner from a foreign jurisdiction, and towards members of the public, with integrity, fairness and respect and without unfair discrimination and shall avoid any behaviour which is insulting or demeaning (article 3.14).

35.5 Refrain from anything that could bring the legal profession into disrepute.
(Article 3.15).

CONCLUSION

36.

Adv Mpofu interrupted the judge on numerous occasions. It is true that an attorney must act according to the instructions of the client and report to the client when it is reasonable and necessary (Goodriche & Son v Auto Protection Insurance Co Ltd (in liquidation) 1967(2) SA 501 (W) at 504E-F), but "[t]his duty on the part of an attorney is not a servile thing; he is not bound to do whatever his client wishes him to do" (Van Zyl, Judicial Practice of South Africa, 4th ed, at 33).

37.

Adv Mpofu did not uphold the accepted decorum in court. What aggravate the situation is the contemptuous conduct towards judge Zondo, which we considered in relation to Adv Mpofu's Twitter feed. Adv Mpofu refused to accept the rebuke from judge Zondo.

In our view, nothing justifies telling a witness or a colleague to shut up, whether directly or indirectly. This is especially so given that judge Zondo made it clear that he first needed to understand Adv Le Roux's question and owing to the fact that Judge Zondo informed Adv Mpofu that he will be given a chance to speak.

DATED THIS 18th DAY OF NOVEMBER 2021

ADV FHH KEHRHAHN (Chaiperson)

ADV AN THANTSA (Member)

ADV 1 MURERIVA (Member)