JAUNDICED EYE
It was cheering that the Commission into State Capture demonstrated that there’s still some bite in the old judicial bulldog. However, unfortunately for the next generation wanting a trustworthy watchdog, its more recent litters of pups are toothless runts.
The Legal Practice Council (LPC) is the latest embarrassment for a profession which has consistently failed to address the rogues in their midst. The LPC has been exposed tying itself into intellectual knots to avoid having to chastise the legal enfant terrible of the Economic Freedom Fighters, Advocate Dali Mpofu.
It joins an array of statutory bodies — including the Human Rights Commission (HRC), the Judicial Services Council, and the Public Protectors Office — which are supposed to ensure that the Constitution is not subverted, the judiciary has integrity and that citizens’ rights are protected. Sadly, all have become either frightened, enfeebled, or surreptitiously leashed.
The LPC has ruled that is not “rude or discourteous” to tell a minister of state and his advocate to “shut up” during the hearings of a judicial commission. Well, that is, not if you grew up speaking isiXhosa and English is your second language.
In doing so, the LPC disciplinary committee rejected the finding of its own investigatory committee and effectively invalidates a ruling of the Johannesburg Society of Advocates (JSA).
The LPC’s bizarre finding relates to an outburst by Mpofu during a sitting of Chief Justice Raymond Zondo’s Commission of Inquiry into State Capture. Mpofu objected to the line of questioning being taken by Public Enterprises Minister Pravin Gordhan’s counsel, Advocate Michelle le Roux, commanding her to “shut up”. ___STEADY_PAYWALL___
When a taken-aback Gordhan exclaimed “Oooh!”, Mpofu doubled down on the insult: “You too, Mr Gordhan. I am still on the floor, you may also shut up.” Dspite Zondo then repeatedly instructing Mpofu to sit down so that he could listen to Le Roux's explanation for her question, Mpofu refused.
Zondo, old-school fuddy-duddy that he is, found all this unseemly and unacceptable. He said that he had “never heard any lawyer in any court proceedings or any commission forum tell another lawyer to shut up. Or a witness”.
“No legal practitioner, including Mr Mpofu, has the right … to tell any other person in this commission to shut up,” Zondo said. If that kind of behaviour were allowed — instead of “request[ing] the chairperson to ask the other person to please keep quiet while they speak” — then “there will be chaos”.
Zondo referred the incident to the LPC, the oversight body that is statutorily enjoined to “enhance and maintain the status of the legal profession”. Unsurprisingly, the LPC’s investigatory committee found that Mpofu should be the subject of a misconduct hearing for failing to show “civility and respect” to judicial officers.
This was bolstered in March, when the JSA, conducting a separate inquiry, found Mpofu guilty of an ethical breach. The JSA ruled that he was in breach of a regulation that requires advocates who are representing clients who have ill-feeling towards one another, not to allow that conflict to impact their conduct towards their opposing colleague.
The LPC’s investigatory committee said that “nothing justified telling a witness or a colleague to shut up, whether directly or indirectly”. It found that Mpofu had “aggravated” the matter with his “contemptuous conduct” towards Zondo, when rebuked by the Chief Justice.
The investigatory committee also expressed concern over a tweet posted by Mpofu afterwards in which he wrote: “I am SO available for this fight … After 369 years we have run out of other cheeks to turn. RACISM AND ITS APOLOGISTS MUST AND WILL FALL! Lets get it on!”
Mpofu’s tweet, clearly directed at Zondo, indicates a perfectly good understanding of idiomatic English. His substantial presence on various social media confirms that impression.
There’s also plenty of evidence, from his court soliloquies that his English is fluent, albeit tending towards the bombastic. And even if the LPC’s disciplinary committee members don’t deign to read court reports, Mpofu’s words of wit and wisdom are widely circulated by his fans in the EFF and the Radical Economic Transformation lobby, both of which he champions.
So, it is puzzling that the LPC disciplinary committee accepted Mpofu’s explanation that he had never understood that the phrase “shut up” could be thought “disrespectful, demeaning or insulting”. No one from the Eastern Cape kraal where he grew up, Mpofu explained to the credulous LPC committee, would have found his words offensive.
The LPC disciplinary finding — which was made last month but was kept secret until News24’s intrepid law reporter Karyn Maughan ferreted it out this week — records that “[Mpofu] told the committee that English is his second language. If he had been allowed to use his mother tongue, isiXhosa, he would have said thula (shut up) or vala umlomo (close your mouth) both of which are acceptable expressions to ask another person to keep quiet.”
The disciplinary committee’s chairperson, Dr Ramola Naidoo —who doesn’t appear to understand the meaning of the phrases “objective test” and “ordinary grammatical meaning” — cobbled together a laughable exoneration of Mpofu. She also studiously ignores the fact that nothing was preventing Mpofu from speaking in isiXhosa if he wished. Nor does she address the fact that the proceedings were being conducted in English.
Naidoo writes, for the majority: “Mr Mpofu's utterance of the words shut up was neither rude nor could they be interpreted as rude and discourteous conclusively on an objective test and based on the ordinary grammatical meaning of those words as used by other members of his rural village, by at least one senior member of the Johannesburg Society of Advocates to another at a different public forum prior to the incident and by the evidence of an article concerning the utterances by the chief justice of India who used those same words to ask an unruly group of lawyers in court to keep quiet and stop talking.”
The fault, according to Naidoo, was rather that of Gordhan’s counsel. “In the committee's view, Mr Mpofu SC did not show disrespect to the chairperson as he was simply standing his ground in good faith in the face of repeated breaches of the rules of advocacy by Ms Le Roux.”
This about more than just a trifling exchange between tetchy lawyers. The LPC disciplinary committee’s decision is important.
It solidifies some dangerous trends emerging from rulings of the HRC regarding the vastly more important issue of justifying black-on-white hate speech:
That the literal meaning of words and their traditional connotations matter less than what the speaker afterwards claims (however improbably) that they understood them to mean;
And that, in any case, the anger of the historically aggrieved is, in itself, ample defence against any accusations of causing harm.
What is insidiously happening is the replication — still in miniature but on many levels — of the apartheid era’s spurious justifications for racial discrimination. While it should be irrelevant in the notionally dispassionate world of the law, many South Africans will be unsurprised to learn that the two-to-one majority decision was taken by two blacks (Naidoo and Prof Vuyo Peach) against a dissenting white (Johann Grosskopf).
But I guess there’s always an upside. Although it was not the intention of the LPC, its ruling — if not challenged and reversed — opens further the door to a marvellous loophole in a country where there are 10 officially recognised spoken languages, to justify crassness and abuse.
Afrikaans is particularly well suited to being weaponised. I look forward to explaining that in my childhood vernacular, “Jou ma se poes” is not the crude and provocative expression — “Your mother’s genitals” — that it translates to in English.
On the contrary, it’s a jocular, colloquialism that merely signals robust disagreement. It should definitely not be construed as misogynistic, bigoted or impolite. Nor “disrespectful, demeaning or insulting”.
Especially not, of course, when used in reaction to the rulings of our craven guardians of judicial standards and human rights.
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