This is a concise legal implication of the alleged criminal action carried out by EFF leader Julius Malema during a political celebration, as well as the party’s advocate Dali Mpofu aiding and abetting the crime. Mpofu risk losing his call to the Johannesburg Bar.
On July 28, Economic Freedom Fighters (EFF) leader Julius Malema was captured on video seemingly firing live rounds from what one expert believed to be an AK-47 assault rifle at the Sisa Dukashe Stadium in Mdantsane, outside East London.
After the alleged shooting, Malema handed the weapon to his security chief, Adriaan Snyman, before exchanging an enthusiastic high five with EFF chairperson, Dali Mpofu, SC.
A legal expert told the press that the offence Malema allegedly committed could get him jailed for 15 years.
Police are now investigating after AfriForum laid a criminal charge on August 1.
Mpofu is a senior advocate and has been a member of the Johannesburg Bar since 1993, taking silk in 2014.
What are the implications for an officer of the court who is present when a criminal offence is committed, or complicit to a crime? And can an advocate of Mpofu’s stature be disbarred for such alleged offences?
Advocate Pierre Rossouw, chair of the professional and fees committee of the Johannesburg Bar, explained that when a practising advocate was involved in an incident that could amount to criminal conduct, it was not necessarily a professional matter that warranted investigation by the Bar.
“Unless it is a crime of dishonesty. These crimes are always of a professional nature because advocates naturally have to be honest people.”
Crimes that are not directly related to dishonesty or corruption will not be investigated by the Bar, said Rossouw.
‘Shooting a guinea fowl not a professional matter’
“Let’s say [an advocate] is caught speeding at 280km/h. It is a crime, but it is not my concern and it won’t be investigated [by the Bar] because it’s not a professional matter. If he shoots a guinea fowl without a licence, again, it’s not a professional matter. If he chops down a protected tree in his garden, it’s not my concern.”
So, by the same token, if Mpofu was present when a firearm was being discharged illegally, he may have been a witness to a crime, “but it’s not a crime in a professional context”.
Rossouw said the Bar would therefore not of its own accord investigate Mpofu.
“However, if a member of the public or anybody should complain, we would have to consider the complaint.”
But Rossouw said Mpofu’s presence when Malema allegedly illegally discharged a firearm did not relate to the former’s ability to practise law as it “happened outside the context of the profession and did not involve any element of dishonesty”.
Charges must relate to dishonesty
Advocate Craig Watt-Pringle, chairperson of the General Council of the Bar, told journalist the Bar’s focus was usually on dishonest conduct.
“Whether a finding that [Mpofu] had committed an offence by not reporting the commission of an offence would render him not a fit and proper person to be an advocate, is highly questionable,” said Watt-Pringle.
“The ‘fit and proper’ requirement really goes to a court’s ability to rely on you as an upstanding person whose word can be trusted.
“For example, if a member of the Bar was caught drunk driving, even perhaps killing someone in what amounted to a culpable homicide [conviction], that would not result in disciplinary action because that has nothing to do with him practising as an advocate.”
EFF spokesperson Mbuyiseni Ndlozi denied that a real firearm was used.
“It is not a firearm and no real bullets were shot. It was a simulation, part of our entire act of celebrating the 5th anniversary. It coincided with the singing of struggle songs and fireworks,” Ndlozi previously told the press.