The venerated American poet, biographer, journalist and editor, Carl Sandburg, once quipped: “If the facts are against you, argue the law. If the law is against you, argue the facts. And if both the law and the facts are against you, pound the table and yell like hell.”
If certain local sycophantic online choristers had their way, they’d likely append: “… and if there’s no table to pound, simply bellow ‘Viva Black Excellence!’ at the top of your lungs” every time their favourite son of the law is shown the door for serving up courtroom theatrics thinly disguised as legal jurisprudence.
Let me explain.
The Constitutional Court was recently cajoled into hearing an “urgent” matter that patently didn’t belong to the apex court – at least not at this point. The matter arose after President Cyril Ramaphosa announced that he had placed police minister Senzo Mchunu on special leave and intended to appoint Prof Firoz Cachalia as acting minister in his stead.
Sadly, what unfolded in open court before a captivated public became a masterclass in how not to rush into litigation – particularly before the apex court. More pertinently, in a unanimous decision, the justices of the Constitutional Court politely reminded senior counsel for the two applicants that they ought to have first approached a lower court for the relief they sought rather than sprinting straight to the apex bench.
Before anyone who didn’t follow the proceedings assumes it was a straightforward decision, it’s worth noting that at least one of the justices – Justice Rammaka Mathopo – was, at one stage, seemingly inclined to rule in favour of the applicants.
That was until one of the president’s senior counsels, Adv Kate Hofmeyr, delivered searing submissions that gave Mathopo pause and, as it turned out, caused him to retreat from his original position. The result was not only the obliteration of the MK Party and Jacob Zuma’s case but also a stark exposure of the poor lawyering by Adv Dali Mpofu, who appeared for Zuma.
A visibly crestfallen Mpofu, who returned to court the following day to hear the ruling in person, was a shadow of his usually self-assured persona. Still, he managed to summon enough composure to grant a media interview after the court adjourned.
No sooner had the ink dried on the court papers than Mpofu’s bevy of social media apologists and spin doctors began recasting their chastened hero –still reeling from the judicial dressing-down – as a fearless legal activist. Others, meanwhile, reached for the well-worn arsenal of invectives they habitually hurl at the judiciary whenever their legal and political demigods suffer defeat.
Evidently, this will not be the last we hear from Mpofu and Zuma on the matter. The latter has already, through a “legal letter” to Ramaphosa, demanded the summary dismissal of Mchunu. Unsurprisingly, the president ignored both the demand and its accompanying ultimatum.
On the bright side, what Mpofu may lack in watertight legal arguments or courtroom victories over his legal peers he more than compensates for with Olympic-grade spin. The man doesn’t simply argue cases, he curates narratives and craves media attention.
And while he might not quite be the Perry Mason of our times, he’s certainly mastered the art of theatrical court performance masquerading as legal submissions — as if he’s auditioning for a lead role in Suits: State Capture Edition.
It’s hardly shocking then that social media occasionally lights up with praise for his “strategic brilliance”, suspiciously echoing sentiments that seem less organic and more like they’ve been gently nudged – if not outright solicited.
One needn’t be a seasoned forensic analyst to spot the fingerprints of ego massaging in posts extolling his supposed brilliance before tribunals, commissions and every legal cul-de-sac in between. What’s truly painful, however, is watching seemingly enlightened citizens – people who should know better – joining the digital choir, harmonising in the cultic chant that seeks to elevate him to some sort of legal demigod-cum-activist.
Come on now! When did we start confusing courtroom antics with erudite contributions to legal jurisprudence? It’s the equivalent of celebrating a cardiac surgeon who, in the middle of a bypass operation, pauses to announce: “I'm not here to save the patient, I'm here to make a bold statement about the National Health Insurance Bill.”
Laudable in sentiment, perhaps, but one might prefer they focus on not letting the patient die on the table.
Professionals – especially those occupying senior ranks like chartered accountants, engineers, and, yes, silks of the legal fraternity – are expected to deliver outcomes grounded in their field of expertise. Not to throw on their robes and strut into court like gladiators in a political amphitheatre, sword in hand, chasing ideological points while billing their clients into cardiac arrest.
In the end, the real tragedy isn’t Mpofu's courtroom drama. It’s that we, the audience, keep mistaking it for law.
- Khaas is chairperson of Public Interest SA
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