OPINION | Bouwer van Niekerk: Legal council's silence on astonishing Teffo matter cause for concern

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Advocate Malesela Teffo is seen during the murder trial of Senzo Meyiwa in the Gauteng High Court.
Advocate Malesela Teffo is seen during the murder trial of Senzo Meyiwa in the Gauteng High Court.
Alet Pretorius, Gallo Images

The deafening silence from the Legal Practice Council following the publication of advocate Teffo's letter is worrisome, as the body cannot be seen to be selective of the issues that they comment on, especially if it concerns issues that are highly relevant to the legal practice and the public at large, writes Bouwer van Niekerk.

Lawyer jokes are prevalent in part because of the deservedness thereof.

"What do you call 10,000 lawyers at the bottom of the ocean? A good start" and "What is the difference between a lawyer and a carp? One's a loathsome bottom feeder, the other is a fish" are but two of my favourites.

There are many more of these, mostly due to the fact that such jokes portray society's disdain of the depths that some lawyers will steep down to in order to gain an advantage in a particular case or the trickery that they will employ in order to obtain an advantage during negotiations.

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This has recently been illustrated in the widely publicised letter of advocate Malesela Daniel Teffo addressed to the Director of Public Prosecutions' advocate GD Baloyi, which was copied to, among others Justice Maumela – the judge tasked to preside over Senzo Meyiwa's murder trial.

Astonishing accusations

In this letter, advocate Teffo levelled some astonishing accusations against the DPP and the presiding judge, ranging from deliberate misrepresentations and failing to be impartial to personal grudges and conducting a dirty trial by involving a Sangoma to incapacitate the advocate, thereby destabilising the defence of his clients.

Advocate Teffo then proceeded to list a string of conditions that are to be complied with "to feel safe to be part of this trial", including nominating a specific judge to preside in the matter, appointing a new Senior State Advocate to represent the State in the trial, that certain criminal charges be withdrawn, that a DPP be criminally charged and that the Minister of Police be dismissed with immediate effect.

READ | ANALYSIS: Alex Mitchley - Advocate Teffo's claims a farce if he can't back them up

The seriousness of these accusations cannot be overstated, as it accuses the prosecuting authority of underhandedness and suggests the collapse of the rule of law due to bias and the use of witchcraft on the side of the judiciary to prejudice the ability of the defence to fairly conduct legal proceedings. And not just any legal proceedings; advocate Teffo's clients are accused of murder. If found guilty, they will likely be incarcerated for a very long time. It is therefore paramount that justice not only be served in such serious matters, but that it is seen to be served to ensure that the public continues to have faith in our legal system.

I do not intend to comment on the accuracy of the accusations, as I have no personal knowledge of the facts underpinning them. However, it is necessary to emphasise the seriousness thereof and to consider the conditions set by the advocate in the context of legal proceedings in general and particularly in the context of being a legal practitioner.

It is objectively impossible for four persons accused of murder to be properly represented in legal proceedings where their personal freedom is on the line by someone who believes that their legal team's participation in a trial is dependent on both the prosecuting and executive authorities meeting his conditions. This is so simply because there is no provision for this in our law. The fact that advocate Teffo is oblivious to this is extremely worrisome. It is almost unthinkable that someone living with such a basic misapprehension of the law is allowed to practice law. And this is where the Legal Practice Council comes in.

Deafening silence

Throughout the year, the Legal Practice Council (LPC) has been quick to publicly condemn unwarranted attacks on the judiciary and the manner in which the same advocate Teffo was arrested on 28 April. This is of course, laudable and should be applauded, as it shows a regulating body that is serious about upholding our constitutional democracy and protecting the dignity of its members. However, its deafening silence following the publication of advocate Teffo's letter is worrisome, as the LPC cannot be seen to be selective of the issues that they comment on, especially if it concerns issues that are highly relevant to the legal practice and the public at large.

By not condemning the conditions set by advocate Teffo in such a public manner that are so obviously misguided and unlawful, the LPC, by its inaction, has contributed to the risk that Jane and Joe Public may be of the very mistaken belief that the advocate may just have a point, and that murder trials can now be delayed until such time as (among others) the President fires his Minister of Police. This specific condition simply points to a complete misconception of the workings of the separations of powers and is inexcusable in the conducting of a proper defence of persons accused of murder. And it is noteworthy, especially to those who guard the guardians of the legal profession.  

READ | 'Shut up' in isiXhosa not rude, LPC finds as it clears Dali Mpofu of misconduct

The LPC's failure to condemn advocate Teffo's actions must also be considered in the backdrop of its recent decision to clear advocate Dali Mpofu SC of misconduct for saying that Minister Pravin Gordon and advocate Michelle le Roux must shut up during a State Capture Inquiry hearing in March 2021. In its ruling the LPC found that: 

Mr Mpofu's utterance of the words shut up was neither rude nor could they be interpreted as rude and discourteous conclusively on an objective test and based on the ordinary grammatical meaning of those words as used by other members of his rural village, by at least one senior member of the Johannesburg Society of Advocates to another at a different public forum prior to the incident and by the evidence of an article concerning the utterances by the chief justice of India who used those same words to ask an unruly group of lawyers in court to keep quiet and stop talking.

The obvious difficulty with this finding is that advocate Mpofu was not addressing anyone in his rural village; he was addressing a Minister and a fellow advocate in a commission of inquiry. Senior Counsel obtains this coveted status because they are seasoned wordsmiths who are familiar with different vernaculars and possess the necessary judgment and experience to know what the appropriate parlance is to use in different settings and circumstances. This should have been obvious to both advocate Mpofu SC and the LPC. 

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In writing this, I am not suggesting that the LPC must be seen as the embodiment of the better angels of our nature or must without fail show judgment that is beyond reproach. I am also mindful of the fact that legal practitioners are entitled to defend their clients without fear of favour. Resolve is as an important part of a legal practitioner's armour as an argument moored in an accurate portrayal of the facts and a correct interpretation of the law. But when actions by legal practitioners are so obviously and publicly reprimandable, the LPC must be consistently vocal. If it is not, then it runs the risk of being told to shut up and becoming the subject of just another joke.

- Bouwer van Niekerk is a Johannesburg-based attorney.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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