Megan Markle was determined to speak her truth and she’s encouraged everyone else to shout theirs out too – except when theirs proves hers to be false. Advocate Dali Mpofu SC seems to be a great fan. He believes in his truth, sometimes even more than the canons of Roman Dutch law and the doctrine of precedent.
In his mind, majority judgments of the apex court are less binding than a minority (dissenting) judgment of the same bench. His witnesses are always better than anyone else’s. In fact everyone else’s are, in his own words, irrelevant.
Increasingly if anyone ever deigns to try to gain say him, they’re told to shut up and sit down. If they’re melanin challenged, the race card is invariably played, and they’re told to respect him (as opposed to his argument) and, as happened in parliament this week, not to treat him like a “little boy”.
For far too long, the law, wrapped in its arcane language and its begowned practitioners has been both inaccessible and often incomprehensible for the ordinary person on the Clapham (Reavaya) Omnibus. One of the great advances for the administration of justice has been the decision to open the courts to live reporting, with the watershed being the Oscar Pistorius murder trial. The downside is that everyone, much as we saw during the COVID-19 pandemic, now fancies themselves as an instant expert with a Markle-esque valid opinion.
It’s a dangerous road merging the court of public opinion with the court of law when it comes to the administration of justice. Transparency is a vital tool in creating accountability on all sides of the court room, but there are some who blossom under the glare of the camera lights and others that wilt. There are lawyers who play to the virtual gallery and judges who let them for fear of being called out.
The court of law can be a place of incredible drama and tension because our legal system is adversarial – s/he who alleges must prove – although it can also be unutterably banal and tedious. The court of public opinion on the other hand is invariably a gutter, home to the lowest common denominator. The court of law should be a place where the weapons of choice are rapier-like arguments that skewer the lies and the deceit, crucifying the criminals and exalting the victims – not a Roman circus.
Unfortunately, not every advocate is a Tembeka Ngcukaitobi or a Wim Trengove. Instead there are increasingly those who choose the jurisprudential equivalent of a brick and a coke bottle filled with 93 octane – and in Mpofu’s case fuelled with lashings of pique. Advocate Malesela Teffo infamously resorted to profanities in court and making up the law as he went along.
There are always four truths in a court room: the prosecution, the defence, the bench and the gallery. For justice to prevail, at least three should coincide. When we allow the loudest voice or the brashest spectacle to become our truth, we are seriously living a lie.
And we will all have to pay for that.
Originally published by the Saturday Star on 27 August 2022.