In an interview with the SABC on April 16, Dali Mpofu SC said the charges he faces at his Legal Practice Council disciplinary hearing on Wednesday “are frivolous and completely unsustainable”.
Some of the charges “must come from someone who doesn’t understand how courtroom situations work ... or what cross-examination actually is”, he said. He was referring to three of the seven charges contained in the LPC’s charge sheet, which address the way Mpofu cross-examined two witnesses — former public protector Thuli Madonsela and former Sars official Johann van Loggerenberg — during the parliamentary impeachment inquiry of Madonsela’s successor, Busisiwe Mkhwebane.
Mpofu told the SABC the “essence” of these charges was that he was trying to discredit the witnesses. “But that is the purpose of cross-examination,” he said, adding there were different styles of cross-examination. Some advocates had a “conversational” style, while others were “more robust”. A robust cross-examination style could not be professional misconduct, he said.
The three charges he was talking about have been brought under paragraphs 56.4 and 56.5 of the code of conduct for legal practitioners, which deal with “the scope and limit of legitimate cross-examination”. The idea is that, while legal practitioners are afforded some latitude in cross-examination, there are lines they may not cross.
One of these is that counsel may “not impugn the character of a witness unless he or she has good grounds”. The code sets out what good grounds would be. And, says the code, even if an “imputation” is well-founded or true, counsel should not put it to the witness, “unless the answers that might be given could reasonably be believed to be material to the credibility of that witness or to be material to any issue in the case”.
Mpofu is charged with breaching the code because when he was cross-examining Madonsela his questions to her about the signing and commissioning of her statement to the inquiry were “aimed at trying to discredit her and imputing criminal conduct on her part”.
He is also charged with spending “many hours” cross-examining Madonsela, “attempting to impugn her character, where you reasonably should have known that her answers would not be material to her credibility or material to any issue in the case”.
He is charged with impugning the character of Van Loggerenberg when he “questioned him on his mental health and if he was suffering from a psychological condition, insinuating that he was not of sound mind”.
As Mpofu said, attacking the credibility of a witness is fair game in cross-examination. But legal practitioners fall foul of the code when they impugn a witness’s character without good grounds. To succeed in a defence, he would have to show he did not impugn the characters of Madonsela or Van Loggerenberg or that he had good grounds.
However, on the charge of spending “many hours” cross-examining Madonsela, Mpofu may say this charge lacks particularity (or doesn’t say enough to enable him to answer to it). There is no prohibition in the code against lengthy cross-examination — the prohibition is directed at impugning a witness’s character when doing so is not material. The charge sheet does not say what he asked her that attempted to impugn her character and yet was immaterial.
When counsel overstep during cross-examination, it is normally dealt with by an on-the-spot reprimand by the judge or whoever is presiding. This task would have fallen to the chair of the enquiry, former MP Qubudile Dyantyi. But the tense relationship between Mpofu and Dyantyi during Mkhwebane’s impeachment enquiry is itself the subject of another charge: Mpofu is charged with bringing the legal profession into disrepute when he said to Dyantyi that he was “going to regret this”.
Mpofu told Dyantyi that he was senior to him in many ways, so Dyantyi had no right to abuse him. “But fine, you’ve got the power now, you can exercise it, but you’ll pay one day.” He added this was “not a threat, it’s a promise”.
During his SABC interview, Mpofu said he was, in fact, the victim in the exchange with Dyantyi, and the LPC had not considered what preceded that remark.
There are also other charges he faces which are not related to cross-examination or Mkhwebane’s impeachment enquiry. He is charged with bringing the profession into disrepute for his conduct during 2022 Judicial Service Commission interviews of chief justice Mandisa Maya and Gauteng judge president Dunstan Mlambo.
Finally, he is charged with failing in his duty to the court when he “caused a letter to be addressed” to the presiding judges in a case between Peter Moyo and Old Mutual in 2021. The letter caused such “disquiet” to the judges they sent their judgment to the LPC for investigation.
If Mpofu is found guilty of some or all of the charges, a range of sanctions may follow, from a fine to the most serious — an application to court that he be struck from the roll.
The test for striking off is that an advocate is not “fit and proper”. Judgments of the Supreme Court of Appeal show that this sanction is usually applied when there are findings of dishonesty — such as misleading the court or perjury.
What Mpofu is charged with falls outside this kind of conduct. However, it may be argued that while the charges, individually, would not be considered serious enough to warrant a striking off application, cumulatively, they would be.
The LPC's disciplinary committee may also consider that, during the same SABC interview, he arguably impugned the council’s character, saying the charges were a “witch hunt” to “tarnish my name”.
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