On 10 November 2022, Ngalwana SC and Sikhakhane SC presented a statement to Parliament following what they regard as a prejudicial manner in which evidence leader, Nazreen Bawa SC, presented evidence ostensibly of the Public Protector’s alleged fruitless, wasteful and unauthorised expenditure on litigation costs.
The impugned evidence was presented by Bawa SC on 2 November 2022 during a parliamentary committee process which is established in terms of section 194 of the South African Constitution to consider the incumbent Public Protector’s fitness for office.
Bawa SC apologised for this conduct in Parliament and in the presence of both Ngalwana and Sikhakhane on 10 November 2022. The apology can be accessed here Committee for Section 194 Enquiry, 10 November 2022 and the relevant part begins at about 22 minutes 25 seconds to about 42 minutes 25 seconds of the recording.
But on 11 November 2022 – the very next day following the tabling of the protest statement and her apology in Parliament – Bawa SC repeated her conduct. She claimed to be “in the hands of the committee” in doing so (which is an abdication of her professional duty and this forms part of the basis for a professional complaint against her to the Legal Practice Council).
At the conclusion of the section 194 parliamentary process, the parliamentary committee will then recommend to Parliament whether the Public Protector is, on the evidence presented, fit for office or not. Parliament will then consider the recommendation and, with at least a two-third majority, must decide whether the Public Protector is fit for office or not.
Watch the Full Oral Presentation to Parliament below, and read the Full statement.
By email@example.com|2022-12-01T14:54:42+02:00December 1st, 2022|Legal Voices|Comments Off on Senior Advocates Protest in Parliament on Prejudicial Treatment of Black Advocates
French social psychologist, Gustave Le Bon (1841 – 1931) and American “public relations” theorist, Edward Bernays (1891 – 1995), are generally regarded as propaganda scholars. Their works have been consulted by numerous governments and corporations around the world on how to influence group psychology by manipulating the content of the information that the public consumes. This is a phenomenon colloquially known as propaganda.
In his seminal work, La Psychologie des Foules (1895) – the English translation of which was first published in 1896 under the title, The Crowd: A Study of the Popular Mind – Le Bon wrote about the power to the human psyche of the repetition of an idea or statement. (see The Crowd: A Study of the Popular Mind (Boomer Books, Waking Lion Press, 2006 ed), ch 7: “The Leaders of Crowds and Their Means of Persuasion”, pp 98-99).
Here is some of what he wrote on the power of repetition:
“Affirmation, however, has no real influence unless it be constantly repeated, and so far as possible in the same terms . . .”.
“The thing affirmed comes by repetition to fix itself in the mind in such a way that it is accepted in the end as a demonstrated truth. . .”
“This power [of repetition] is due to the fact that the repeated statement is embedded in the long run in those profound regions of our unconscious selves in which the motives of our actions are forged. At the end of a certain time we have forgotten who is the author of the repeated assertion, and we finish by believing it. . .”.
“If we always read in the same papers that A is an arrant scamp and B a most honest man we finish by being convinced that this is the truth, unless, indeed, we are given to reading another paper of the contrary opinion, in which the two qualifications are reversed. . .”.
“When an affirmation has been sufficiently repeated and there is unanimity in this repetition . . . what is called a current of opinion is formed and the powerful mechanism of contagion intervenes. . .”.
The piece comes on the back of “evidence” apparently presented by evidence leaders at the parliamentary inquiry into the fitness of the Public Protector to hold office. It is the presentation of that “evidence” for all to see that set in motion a train of events, including publication of this piece, with potentially ruinous consequences for the Black advocates concerned.
This does not appear to be by accident. It is difficult not to conclude that it may be the beginning of the constant repetition of a narrative aimed at “cancelling” the targeted Black advocates. All four Black Senior Counsel are currently leading in various ongoing litigation against government and the white business establishment on behalf of clients who have a right to legal representation in our democracy:
Mpofu SC represents the Public Protector in her impeachment inquiry by a parliamentary committee and has successfully challenged her unlawful suspension by the President a day after she announced that she was investigating his “Dollargate” This is the scandal that threatens to derail the President’s bid for a second term as President. Mpofu SC also represents former President Jacob Zuma in his criminal trial by the state, and in the private prosecution of a senior public prosecutor and a self-styled “legal” journalist. He also represented the former President in that unprecedented conviction and sentencing of a private citizen by the apex court.
Sikhakhane SC represents Mr Arthur Fraser (former State Security Agency Director-General) who lay criminal charges against the President in relation to his “Dollargate” or PhalaPhala scandal which may possibly scupper his ambition for a second term as President. He also represented former President Zuma at the State Capture Commission and sought recusal of the (now) Chief Justice. Also among his clients is the Sekunjalo Group of Companies in the main proceedings of the Equality Court against the banks and financial industry regulators including the South African Reserve Bank, the Financial Sector Conduct Authority and the Financial Intelligence Centre.
Masuku SC also represents former President Zuma in his criminal trial. He also leads a team that is challenging the review of the Mpati Commission of Inquiry on behalf of the Sekunjalo Group of Companies which are being targeted for closure by the banks and mainstream media, like the Daily Maverick, in South Africa. The banks and mainstream media are using the Mpati Report as a basis for targeting the Group. Masuku SC also represents Judge President Hlophe of the Western Cape High Court who has been in the crosshairs of certain persons in the legal profession.
Ngalwana SC represents the Sekunjalo Group of Companies against the banks which closed the Group’s bank accounts on the basis, principally, of the Mpati Report. The Equality Court and the Competition Tribunal have ordered the re-opening of these accounts and have interdicted the banks from closing them. Some of the banks are challenging the Competition Tribunal’s decision on review and appeal. Ngalwana is also leading a team that is challenging the State Capture Commission on review. He also leads a team challenging the freezing out of Black companies from state contracts. He has successfully lodged complaints against 2 white judges for gross misconduct and is a vocal opponent of the President’s incumbency for reasons he has articulated on social media.
It would be naïve to exclude this context when considering the Daily Maverick attack on these targeted Black advocates. The only reasonable conclusion would be that the tainting of these targeted Black advocates by constant repetition in the media (by innuendo since there is no evidence of criminality or unprofessional conduct) that we are “beneficiaries” of monies “funnelled” through the office of the Public Protector. That way, it is hoped that our voices will be muted and our professional standing as Officers of the Court is forever compromised. The ripple effect of that is obvious, and that is probably why the names of less senior advocates on brief with us in various matters have also been unfairly published. Either they are also accused of malfeasance or, more likely, the message seems to be a warning to them not to associate with us.
Neither the journalist nor the evidence leaders cared to hear the side of the targeted Black advocates on the “facts” before putting out material that suggestive of professional misconduct in the public domain. Neither notice nor hearing was afforded. As it turns out – at least in my case – the alleged “facts” are wrong. The leading evidence leader has admitted as much to me that “the figure was incorrect”, and that she will “correct it”.
But that’s hardly the point. Why was it necessary for the evidence leaders to parade our names (leaving out many others, including white Counsel) in their pursuit of proving the Public Protector unfit to hold office? Why was it necessary for them to do this even without giving us notice? Why couldn’t they verify with us the accuracy of the “facts” on which they rely before going public with such potentially damaging information?
And these are not even allegations or accusation. In my profession, there is a practice known as “self-reporting” if there is an accusation or allegation of unethical conduct, but which has not been formally reported to the Bar Council, or if Counsel suspects there may be something possibly amiss in his or her own conduct that may require the attention of the professional committee. The expectation is that Counsel knows (or should reasonably know) when a matter of his or her own conduct requires the attention of the Bar Council. One need not first be reported.
So, with that in mind, I asked the evidence leader directly:
“Are you accusing me of anything? If so, of what exactly? I ask so that I can decide how to approach what you did this past week.”
Her answer was an emphatic: “No I am not accusing u of anything”.
Then she apologised and said she will do it openly during the parliamentary committee sitting. I look forward to learning of the precise content of the apology.
As part of proving their case that Adv Mkhwebane is not fit to hold office, the evidence leaders (both advocates) had it in their heads that it would be a good idea to expose for public consumption the fees that a select number of Black Counsel had earned from rendering legal services to the Public Protector on instruction from various attorneys (8 in my case) to the glaringly obvious lack of attention on white counsel, white law firms and other black counsel who, it seems in their view, do not fit the narrative they seem intent on putting forth. Did they do this deliberately? The lack of focus on white counsel and white firms makes the attention on targeted Black Counsel a racially slanted exercise.
Anyway, I digress. My purpose here is not to engage with the unpardonably louche conduct of the evidence leaders. I have started a process of dealing with that elsewhere. My focus is the Daily Maverick takedown of specifically targeted Black advocates for doing what advocates in the referral profession do: render legal services to a client through an instructing attorney on fees agreed in advance with the instructing attorney.
That the targeted Black advocates should earn a fee, over a period [4 years and 5 months in my case], from rendering legal services to an institution that is funded by government (ultimately taxpayers) seems to stretch the bounds of credulity for this white journalist. Her interest seems to have been triggered by the amounts the targeted Black advocates are alleged to have earned: “millions of rand”, she pronounces with apparent disgust. One could only imagine what her reaction would be if she were to hear the amounts the white advocates earned.
Labelling these targeted Black advocates variously as “those who are opposed to accountable government”, “a cluster of well-known professionals” and “an A-list of high-powered beneficiaries”, she spares hardly an adjective or verb that is suggestive of criminality. For example, according to her, these targeted Black advocates did not earn their fees from rendering legal services. Instead, they “benefitted handsomely” from the litigation “funnelled through” the Public Protector’s office.
By innuendo, these carefully chosen words are intended to suggest malfeasance or corruption or worse. But on what evidence? Did she even bother to ask the targeted Black advocates she so callously defames? Of course not. That would spoil her broth.
Notice the careful choice of the verb “funnelled”. It seems intended to create the impression that these are monies diverted from elsewhere. Why? Well, because these Black advocates “lost all these cases” – a lie of course, but why would she let facts get in the way of a good yarn?
Quite apart from the fact-free merits of the publication, let us consider the journalistic value of the article.
The Daily Maverick article is a wide-ranging piece of work, although labelling it as “work” is rather charitable. The piece lurches imperceptibly from partisan political commentary to didactic UNreasoning to what inevitably comes across as a white superiority sermon. As a journalistic piece it is incoherent, a language understood only by fellow travellers. As a propaganda tool it is blunt and unlikely to persuade a discerning reader.
It is difficult to understand how this piece made it past the sub-editor’s desk, let alone being published. Surely the editor could discern the significant reputational risk to the media house? Perhaps not? Perhaps this is the sort of unbridled attack on Blackness that we should come to expect from the publication?
The measure of a good script is usually a coherent plot. That normally comprises a clear thesis, focused and unwavering reasoning aimed at proving the thesis, and a conclusion that brings everything to a logical end.
Writers are often encouraged to flesh out the plot with colourful characters and vivid settings that will enhance the story and grab the reader’s attention. The journalist does this with aplomb. Characters like Adolf Hitler feature prominently alongside Black advocates. The imagery is disturbing. But that is the point: to shock and awe and, ultimately, cancel the targeted Black advocates by resorting to thoroughly disreputable imagery.
In a work of fiction, this is well and good. But playing Russian roulette with people’s professional careers that could trigger all forms of potentially ruinous consequences is just mean-spirited. Already, there are people who believe – simply on the basis of innuendo – that these targeted Black advocates “looted” the public purse.
But even in a work of fiction – which this article largely is – staying focused on the thesis is key. Nothing is worse than a good plot idea that grows ever more chaotic as the story develops. But Daily Maverick‘s Marrianne Thamm – who has apparently written books – appears to have suspended this rudimentary literary exploit as she lurches directionless from one chaotic sub-plot to the next in quick succession.
For example, what has Ngalwana’s representation of Dr Iqbal SURVÉ to do with Adv Mkhwebane’s fitness for office? Ah! Rogue by association. That’s it. If Ngalwana represented Mkhwebane and now represents Dr Iqbal SURVÉ, then abracadabra, Ngalwana must be a rogue. “Dots have joined …”, she claims triumphantly. Such is the didactic UNreasoning of the piece.
Stumbling from, at once, excoriating and praising politicians (Malema, Sisulu, Zuma – even Pallo Jordan is dusted off from politico-academic oblivion in order to make a desperate point about the Freedom Charter somehow, conveniently, birthing the Constitution) to judges (Hlophe and Sachs) to lawyers (Mpofu, Sikhakhane, Ngalwana, Xulu, Masuku, Seanego – ignorantly making no distinction between attorneys’ and advocates’ roles, if she even understands the distinction) the piece meanders haplessly into a lump of shapeless bile – which in itself inadvertently paints the writer as a foe of democracy.
So, what next? Does one sue for defamation? Perhaps. But the damage is done. No amount of court-awarded damages will undo it. The writer and her lawyers know this. To her and her bosses R500,000 is a small price to pay for the damage they wanted so desperately to inflict on those they consider out of step with their view of the world they still want maintained for posterity. An apology? A retraction? From a media house? What good will that do in a scandal-enthused public?
What about defamation against evidence leaders? Does parliamentary privilege shield them in this case? Is that why they felt no compunction in doing what they did? I find it difficult to believe that a member of the Bar (as I know it) would deliberately seek to malign colleagues in this fashion. At least that is the member of the Bar in me. I suppose time and further developments will prove what the correct position is. But can the same be said of a journalist?
One thing is clear, though. The hard work of freeing South Africa from the shackles of totalitarianism of all sorts continues.