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Where is the legal line?

Jul 08 2018 11:31
Justin Brown

Advocate Dali Mpofu, on behalf of suspended SARS commissioner Tom Moyane, may have contravened key aspects of the Commissions Act and promulgated regulations in his brutal attack on the SARS inquiry headed by retired judge Robert Nugent.

This is the view expressed by legal experts who spoke to City Press this week.

Regulations issued on June 13 by President Cyril Ramaphosa for the commission of inquiry into tax administration and governance by Sars provide that: “Any person who insults, disparages or belittles the commissioner or any assistant to the commissioner shall be guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding six months.”

The Commissions Act further states that no one may wilfully hinder or obstruct a commission in the performance of its functions.

Luzuko Tshingana, a lecturer at University of Fort Hare’s Nelson Mandela School of Law, said: “Without a shadow of doubt advocate Mpofu has overstepped his bounds.

“He could, no doubt, be faced with a complaint and a corresponding charge of unprofessional conduct through the Bar Council. Depending on the seriousness of such misconduct, he could be struck off the roll,” Tshingana said.

“These utterances by Advocate Mpofu, one would conclude they amount to nothing but a personal attack not only on the commission, but on the presiding officer himself.

“It is my considered view that advocate Mpofu’s utterances and behaviour amount to nothing more than wilful obstruction and hindering of the commission, and thus should be followed with a sanction as provided for in that section.”

Helen Kruuse, Rhodes University law lecturer, said, based on the comments Mpofu made, “I do believe there is a potential violation” of the Commissions Act and regulations, in particular related to the question about whether Mpofu insulted, disparaged or belittled the chair or any member.

“One interesting area is who the insult is directed at. While it clearly attacks the chair [as it must if he presides over what Mpofu has called a sham, a kangaroo court characterised by unlawfulness and unfairness] and one of the assistants, Professor [Michael] Katz, the attack is also launched against the president [Cyril Ramaphosa], who appointed the commission,” she said.

In response, Nugent told Mpofu: “I have never been called a kangaroo court before. Let me tell you Mr Mpofu – I have a thick skin. So don’t worry about that. I wouldn’t institute any prosecution for disparagement.”

Mpofu later clarified he didn’t doubt Nugent’s standing.

“The conflict is not with you – it is the president [Ramaphosa],” he said.

This week, when Nugent delivered his ruling on Moyane’s demands, he said the document Mpofu handed to him on behalf of Moyane was a “disgrace”.

“No less disgraceful than its repetition in counsel’s address.”

Nugent rejected all of Moyane’s demands, including for the inquiry to be halted.

Moyane’s lawyer, Eric Mabuza, told City Press after Nugent delivered his ruling that “we got a whacking”.

General contempt

While Kruuse cautioned that her views were based on the information available in the public domain, she noted it looked like Mpofu had shown “general contempt”.

She identified the crux of the issue as tension between a lawyer’s duty to client versus their professional duty.

“The Nugent ruling indicates the methods employed by Moyane’s lawyers were procedurally inappropriate. This is ironic given that Mpofu claims the commission is procedurally unfair, but Mpofu utilised none of the obvious proper procedural mechanisms to aid his client,” Kruuse said.

“The Commissions Act allows for the chair to decide on issues relating to witnesses’ power to cross-examine and so on, but Mpofu did not utilise any of these mechanisms. Surely he should have done it timeously and before any evidence was heard,” Kruuse said.

“While an advocate is free to critically engage with the terms of reference and the proceedings, the manner in which Mpofu has conducted himself is potentially not one befitting of the legal profession.”

“While there is no ‘duty to court’ here, an advocate cannot, in the words of Nugent, ‘play fast and loose with the facts, draw inferences from inadequate material’ and litter his submissions with ‘abusive, invective and sinister suggestion’.

“If this is indeed the case, then he cannot comfort himself with: (1) it was the instructions of my client; or (2) I am protected by rights to freedom of speech.

“It is not enough for Mpofu to suggest that his client instructed him to make these allegations since it is well known in our law that a practitioner should not take up ‘the utterly wrong attitude that his sole duty is to his client – as if he were that client’s mere hireling’ [Judge Dennis Davis in Herbstein and Van Winsen’s The Civil Practice of the High Courts & Supreme Court of Appeal of South Africa].”

“Though we enjoy freedom of expression, we would be ill advised to celebrate them by vilifying each other on the slightest pretext.”

“The problem is that it appears that Mpofu’s comments are, at best, indifferent to procedural mechanisms.”

Away from his work, Mpofu is also EFF chairperson.

Fore Hare’s Tshingana said: “It is my considered view that advocate Mpofu is somewhat compromised by his political affiliation such that he often finds himself in a situation where he has his ethical responsibility and personal feelings and/or political views intertwined. Such behaviour is disappointing to say the least.”

“The downside of it all is that it might be difficult for the president to use the outcomes of the investigation against Mr Moyane as the public would have concluded he was treated unfairly,” he said.

UCT law academic Pierre De Vos wrote in a column that attempts by Moyane and Mpofu to demand that the inquiry cease its work had no valid legal basis, were unethical and only made sense from a political perspective to try and create the impression the inquiry was biased against Moyane.

In response, Mpofu wrote on Twitter to De Vos: “If you do not remove this article, which I find defamatory, insulting and possibly racist, expect legal action.”

Hoist with their own petard

“I think Moyane and his legal team have been hoist with their own petard,” Kruuse said.

“They have chosen to apply after the fact, with little evidence and without even attending some of the sessions. Nugent [as a long-time Supreme Court of Appeal judge] does not mince his words on this in his ruling, and I think rightly so.

To me this is about potentially unprofessional conduct and perhaps just a bit of ego on Mpofu’s part.”

Johannesburg Society of Advocates (JSA) chairman Ian Green said that the JSA did not comment on specific cases until a case has been invesitgated and a determination made. Green said Mpofu was a JSA member. “The professional and fees committee of the JSA deals with professional and ethical issues...The professional committee is considering the issues that you have raised,” Green said.

City Press sent Mpofu questions about whether he had contravened key aspects of the Commissions Act and promulgated regulations during his appearance at the Sars inquiry, and whether his conduct at the inquiry was unbefitting of an advocate. Mpofu did not respond by late on Friday.

These are some of the accusations Mpofu hurled at the SARS inquiry: 

  • “This [SARS inquiry] is one of the grossest and most unfair processes witnessed in this democracy."
  • “Here they [witnesses who testify at the Sars inquiry] won’t face robust questioning.”
  • Mpofu referred to Moyane’s disciplinary hearing, headed by advocate Azhar Bhamand, and the Sars inquiry as “two kangaroo” courts.
  • He accused the inquiry of obtaining evidence so far “under a huge cloud of unlawfulness and procedural unfairness”.
  • “We really like you to approach this from a position of impartiality, which we know you [Nugent] for.”
  • “This is an abuse, it is a sham, it’s a farce. It cannot be allowed to continue.”
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sars  |  dali mpofu  |  julius  |  malema  |  sars inquiry  |  nugent commission
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