The Supreme Court of Appeal (SCA) slammed advocate Dali Mpofu for pursuing an appeal on behalf of ousted Public Protector Busisiwe Mkhwebane, which was clearly “dead on arrival”.
Judge Nathan Ponnan wrote on behalf of the five judges hearing the matter: “Where, as here, counsel has been involved in many matters involving the same client, they can easily become convinced of the merits of their client’s cause, oftentimes to the detriment of the client. Unless the matter is approached from a detached perspective, a legal representative may well develop tunnel vision, thereby losing all objectivity.”
He added: “Had counsel stepped back apace or had Ms Mkhwebane taken advice from a disinterested member of the bar, schooled in appellate practice, she would have been advised not to pursue this appeal, which self-evidently was dead on arrival. We cannot conceive that any reasonable legal practitioner could disagree with this appraisal.”
Mkhwebane tried to appeal a Western Cape High Court ruling that dismissed her attempts to force the removal of former ANC MP Qubudile Dyantyi and DA MP Kevin Mileham from the section 194 committee that was appointed to investigate multiple allegations of misconduct and incompetence against her.
Mkhwebane also launched a “veritable avalanche of legal challenges” to the impeachment process against her, including various failed efforts to force the removal of Dyantyi, Mileham and the inquiry’s evidence leaders.
Ponnan ruled that Mpofu’s conduct left a lot to be desired.
“There remains a question of some delicacy – the necessity to say something about the manner in which the matter was conducted,” Ponnan said.
The DA questioned Mkhwebane’s claim that she was representing the Public Protector in her recusal case. The office of the Public Protector clarified that it was not involved as Mkhwebane had been removed from office, the party and Parliament: the appeal that she persisted with was moot which Ponnan accepted. Mkhwebane’s lawyers had failed to address those arguments.
According to Ponnan, “despite having been forewarned, counsel for Ms Mkhwebane, who seemed not to be sufficiently well-versed with the relevant authorities, was of little to no assistance to the court”.
“To understand the decision-making process, those who practise in this court are expected to have more than just a nodding acquaintance with the relevant rules, as also the established jurisprudence of this court. Developed skills in legal research, analysis and writing are an indispensable part of an appellate practitioner’s toolkit. Conclusionally, assertions that a lower court disregarded the law or turned a blind eye to egregious violations of a litigant’s rights, can hardly carry the day.”
Ponnan accused Mpofu of his often abrasive and protracted arguments, which are routinely known to exceed any of the time given to other counsel. Brevity, the judge stressed, was the sign of a well-prepared advocate.
A member of the Portfolio Committee on Justice and Constitutional Development, DA MP Glynnis Breytenbach, welcomed the ruling.