Dali Mpofu SC has “no time for detractors”.
Sometimes, people ask him if he saw a story about about him in the newspapers. He answers no. “And I don’t even rush and go and get it. It doesn’t bother me.” Perhaps “to laugh” he will go to X and read the comments. He has 1.1-million followers, but many of them troll him, asking when he last won a case. He doesn’t feel a need to respond. “If I were to say ‘last week’, they would probably get shocked. But why must I entertain that?”
His detractors don’t know him, he says.
“I can tell you there’s no lawyer in this country who, if I’m going to be their opponent, is not going to think ‘yah, now we are at another level’. Not one. We can name them. They know. They know in their heart of hearts. So why must I worry about some Twitter bots?”
Mpofu is one of a few senior counsel who are household names in South Africa. As court proceedings are increasingly broadcast live, he has become as famous as a lawyer as he is a politician — “the People’s Advocate”, he was dubbed by the EFF, the party he helped to found.
But his behaviour as an advocate has provoked criticism, sometimes outrage. Complaints of unethical conduct have been laid with the Legal Practice Council. Lately, he has been in the news for his move from the EFF to the MK Party, which has unseated the EFF as the third largest political party in parliament.
Ahead of the elections, the MK Party said in its election manifesto that it would “hold a referendum to scrap the 1996 constitution and replace it with a parliamentary system with or without a codified constitution” and would install an upper house of the parliament “comprised of indigenous kings and queens as well as other traditional leaders”.
These positions led to consternation among what Mpofu calls the “chattering classes”. He says the MK Party is not anti-constitutional. Its constitution does not say it would scrap the constitution, it says it favours parliamentary sovereignty. It’s “very illiterate to juxtapose those things”. You can have a constitution that favours parliamentary supremacy, he says.
There may be a constitution that favours parliamentary supremacy. But it would not be our constitution, which makes the constitution supreme I argue. And what about what was said in the election manifesto? The latest policy positions of the party are in its constitution, Mpofu argues. The manifesto “is slogans”. The “unpacking” of what this means is “two things: it means introducing parliamentary sovereignty. It means doing away with the Roman Dutch law and English law base of the common law. And land. Section 25...”
The common law of South Africa “must be based on the values that come from Africa, like ubuntu, collectivism. You can’t take the common law of some country in Europe ... and transplant it here.”
But legal commentators have questioned this argument, because the constitution already makes the common law subservient to it. No law, whether statute or common law, may survive if it is incompatible with the rights and values in the constitution.
I ask Mpofu what it would mean, in practice, if the common law were to be done away with. What would be scrapped? What would change? I suggest, as an example, the rights of accused people. Would these be scrapped? No, he says. There are some principles that are universal.
What then? “It doesn’t matter,” he says impatiently. The common law is a vestige of colonialism. The current constitution does not go far enough. The MK Party wants to go “one step further” and decolonise the constitution.
I ask how, as a Marxist, he reconciles himself with a policy that proposes that monarchs — inherited positions — should play a role in the development of our laws.
Explaining, Mpofu starts with the history of the ANC. Those on the left “always would have an uncomfortable relationship with the ANC, because the ANC is a nationalist organisation”. The ANC always brought in the monarchies, in fact it “was started by religious leaders and chiefs, basically”. There has always “been an uneasy relationship between the nationalists in the ANC and the Marxists. But that’s just a dialectic of the South African struggle, of the nature of the South African struggle.”
The answer lies there, says Mpofu. “You must take the people from where they are. You can’t be some textbook elitist that says, yeah, no, I won’t work with trade unions, I won’t work with civic organisations or traditional leaders and so on.”
The problem is that the ANC has “now shifted so much to the right”.
“The ANC describes itself as a so-called broad church. That means it has right-wing elements and left-wing elements. But the general orientation must always be leftward.” That was how the likes of Oliver Tambo saw it, he says. In this way the MK Party is the “real ANC”, he suggests.
The ANC describes itself as a so-called broad church. That means it has right-wing elements and left-wing elements. But the general orientation must always be leftward.That was how the likes of Oliver Tambo saw it, he says. In this way the MK Party is the 'real ANC'
Mpofu’s political roots are in the ANC. The first time he was detained he was 17, he says. He spent his 18th birthday in a prison cell. While on bail in early 1981, his home was raided. He was part of the Eastern Cape leadership of the recently formed Cosas, but had already also been recruited into the banned ANC. During the raid, the special branch found ANC literature under his mattress.
Over the ’80s, as Mpofu became more deeply involved in liberation movement politics, he was detained six times, he says. He was tortured. He would go into detention and, upon release, find out that friends and comrades had been killed. When he left the ANC for the EFF in 2013, he said he did not leave the ANC, the ANC had left him.
His confrontations with apartheid authorities led him to the law as a profession. The first time he thought about being a lawyer was during his trial for arson. His counsel suggested it after his performance as a witness, he says.
Initially enrolled at Wits for engineering on a scholarship, it was “the most boring thing I’ve ever done”. When he wanted out, he contacted John Dugard — now a legend in international law who led South Africa’s team at the International Court of Justice in its genocide case against Israel. Dugard, then at the Wits law faculty, had presided over Mpofu’s disciplinary entanglement with the university when he organised a student boycott at his residence. That’s how he got his place at law school, he says.
Moving to law meant he lost his scholarship. It was retired judge Kathy Satchwell (then an attorney) who “rescued” him. She paid his fees on condition that he did vacation work at her office. He then did his articles of clerkship with her as he finished his degree. Satchwell also represented him when he was detained, he says.
He has often been asked whether he is a lawyer or a politician. “There isn’t a distinction ... The whole thing came to life together.” His “passion is justice”, he says. “Whether that’s political or social justice, or legal court-based justice, for me, it makes no difference. It’s the same thing. Any injustice just gets me to the core.”
But court-based justice has rules, which advocates are ethically bound to adhere to. There are at least two complaints of unethical conduct against Mpofu pending before the Legal Practice Council (LPC).
Blistering judgement
In a recent judgment of Judge Visvanathan Ponnan, the Supreme Court of Appeal sent impeached public protector Busisiwe Mkhwebane packing in a blistering judgment and said of Mpofu: “Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom.”
And, while advocates routinely take on losing cases (every case has a winner and a loser, after all), questions have been asked about Mpofu’s role in the pursuit of cases that were found to be an abuse of process.
Mpofu recognises he is a leader in the advocates’ profession and that young advocates look up to him and seek to emulate him: “They tell me so themselves.” He agrees “absolutely” that advocacy is an honourable profession.
He says he has acted honourably in every case he took on: “Absolutely, without question.”
Asked about two instances which led to complaints of ethical breaches to the LPC, Mpofu said he was “a thousand percent” honourable in his cross-examination of former public protector Thuli Madonsela during the parliamentary impeachment inquiry into her successor Mkhwebane. The cross-examination was met with outraged criticism.
I suggest bringing in degrading comments made by others about Madonsela’s looks was irrelevant to the inquiry. He says he never repeated an allegation that she was ugly and can’t remember a comment he put to her about her looks. But if he did, it was relevant. I disagree. “Well, that’s your opinion,” he says. In his opinion, it was relevant.
What about his threat to the chair of the inquiry, Qubudile Dyanti, when he said “you will pay one day”. It was not a threat, it was a promise, he says. What is the difference? “The difference is I said he’s going to pay one day. Which he did. Where is he now?”
Mpofu says Dyantyi was the one being rude: “Like a peacock, defended by the media.” For months, Mpofu had been respectful towards him as chairperson, he says. He was trying to explain why Mkhwebane was not there and Dyantyi switched him off, muted him and stopped him while he was talking — “nobody writes about that”, says Mpofu.
He says being “undermined, racism, any form of degradation” is where he draws the line. “I don’t care. You can take your legal titles, you can take everything. I can leave this job tomorrow if the price is that someone must humiliate my dignity. Never. I would rather go home and, as they say, mind my cattle.
“It will never happen... I’ve been tortured and almost killed for this. So why must I tolerate that from anyone, whether you are a judge or a king, or whatever. It will never happen.”
I ask if he advised his clients on their prospects of success in those cases where they lost spectacularly. He fixes me with a gimlet eye: “Which cases have I lost spectacularly?”
I mention the recent SCA judgment of Ponnan. That was a good case, he says, and it is currently before the Constitutional Court. “Let’s not prejudge the case.”
I ask him if he “really, really” thought Zuma’s private prosecution of journalist Karyn Maughan was a good case in law. The high court said it was an abuse of process and that the information Zuma claimed was his confidential medical information was not confidential. It “was a very good case and I can assure you it was a good case, even now. There’s no journalist who is allowed, or prosecutor who’s allowed, to share the private information of an accused person. Never. It’s punishable by 15 years.”
Passionate
While Mpofu has fierce critics, he has equally passionate defenders. He has fought for transformation in the advocates’ profession. In 2015, when he was chair of the Johannesburg Bar Council, he led an unprecedented protest about discriminatory briefing patterns at the Johannesburg High Court during the silicosis class action certification case. Out of nearly 40 counsel in the case, only three were black and seven were women. On the second day of the hearing, about 50 advocates filed solemnly into the courtroom, all fully robed for court, and asked to address the court.
The protest paved the way for “the real fight” that followed at the Johannesburg Bar for a rule that, where there were three counsel on brief, at least one had to be black, preferably a black woman. Getting the resolution passed was not easy. “I had to fight tooth and nail,” he says.
He says people may forget that he was counsel in the case defending Madonsela’s State of Capture report — there may have been no Zondo Commission if it were not for that litigation, he says. He was also counsel in the famous Nkandla judgment of the Constitutional Court. One “honourable advocate” told him the Nkandla case would never succeed, he says, giving me a pointed look.
“History will be the judge,” he says.
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