Dear
Advocate Jamie:
With
a heavy heart and with all due humility, I am compelled to file yet another
complaint against Jeremy Gauntlett SC for professional misconduct. I do not know whether in terms of your
rules this complaint will simply be consolidated with the pending earlier
complaint or whether it will be treated as a fresh separate complaint to be
assigned to another Committee.
What actuated the filing of this Complaint are Mr. Gauntlett’s
assertions in responding to the earlier complaint as detailed below.
A.
Background.
As
you all know, on 21 November 2012, I filed a misconduct complaint against
Advocate Gauntlett SC in which I stated it was unethical for Mr. Gauntlett to
falsely state that the JSC “introduced a new quality for judicial appointments:
humility.” I argued that this constitutes a false statement of fact and
law. In addition, my complaint
asserts that Mr. Gauntlett’s answer to Commissioner Ntsebeza’s question with
specific regard to a “toxic relationship” with Hlophe JP is a classic, textbook
case of lack of candour with a tribunal.
What renders the transgression here devastatingly serious is that it was
perpetrated during interviews for judicial appointment and under circumstances
where the JSC is entitled to rely on the absolute and unreserved candour of the
candidates. You subsequently
informed me that the Bar Council decided on the evening of 22 November 2012 to
appoint a sub-committee to look into my complaint.
I
have had the opportunity to peruse Mr. Gauntlett’s response to my complaint and
I regret to inform you that the response itself reveals further violations of
the code of conduct for members of the Bar as detailed below. Most significant, the response by Mr.
Gauntlett violates the duty of candour with a tribunal (the Bar Council and its
committees) and as such constitutes an aggravating factor which warrants
further investigation.
B. Substantive
Allegations of Misconduct.
1.
Mr. Gauntlett Media or Press
Statements Constitute Per se Violations of GCB Rules of Professional Conduct
Which Prohibit Advocates From Expressing A Personal Opinion to the Press or
Other Media About the Facts or Issues Arising Out of Any Anticipated or Current
Proceedings In Which They Are Briefed, Expect to Appear or Have Appeared.
1.1
A person who is admitted to practise as an advocate, and who chooses to
exercise that right to practise, must adhere to the recognised standards of the
profession. An advocate who fails to adhere to those standards to a degree that
satisfies a court that he is unfit to continue to practise is liable to be
suspended from practise or to have his name struck from the roll of advocates.
1.2
In this matter, the GCB Uniform Rules of Professional Conduct stipulate
in Section 4.21 entitled “Statements
and comments to the media” the following:
4.21.1
A member must not issue statements to any news or
current affairs media in connection with any matter
in
which he/she is or has been briefed or instructed.
1.3
The above section must be read together with Section 4.18.3 entitled “Non-Iegal Publications “
which reads as follows:
(d) Members of the Bar should not write articles in non-
legal
publications with regard to pending cases nor
cases where the time for appeal has not expired.
(e) It is contrary to professional etiquette for
counsel to
engage in
newspaper correspondence or to issue press
statements on
the subject of cases in which they are or
have been
themselves concerned as counsel.
(f) It is undesirable for a member to express an
opinion in
the press, by
letter, article, interview or otherwise on
any matter
which is still pending in the Courts.
Notwithstanding the aforegoing, a member may
express an
opinion in the media, in general terms, on
an issue which
is still pending, provided that the
member does
not thereby purport to pre-judge the
result.
1.4
A hyper-technical and/or strict reading of Rule 4.21 suggests that the
prohibition is only against issuing press or other media statements in
connection with matters in which the Advocate “has been briefed or instructed”
and may at first blush suggest that it cannot apply to Mr. Gauntlett because
his JSC interview and judicial candidacy did not, strictly speaking, involve
his role as a “briefed or instructed” counsel. However, such a literalist and narrow reading of the rules is
unsustainable and would be legally flawed. It would be incongruous for the rules to simply prohibit
press statements by a hired advocate on the one hand but allow unrestrained
public criticism of the JSC by advocates who are disappointed by the outcome of
JSC interviews and under circumstances where the affected advocate knows of
pending litigation involving review of the very JSC decision. A purposive interpretation is required
in light of the following: Under
the extant GCB rules, it need not be shown that the impugned press statements
constitute the offence of scandalizing the court or that particular results
ensued from the press interview.
It is the mere release of press statement or interview that is
prohibited without regard to results. It is against
this background that Gauntlett’s transgressions must be evaluated. Under the rules, members of the Bar
“should not write articles in non- legal publications with regard to pending
cases nor cases where the time for appeal has not expired” and this must be interpreted to mean the
said Barristers cannot do so indirectly by causing others, (e.g. Journalists)
to regurgitate their views in such articles. It is contrary to professional etiquette for counsel to
engage in newspaper correspondence or to issue press statements on the subject
of cases in which they are or have been themselves concerned as counsel. When an advocate appears before
the JSC to be interviewed, he does not miraculously shed his status as advocate
and officer of the court simply because he has no “client” but himself as a
candidate. It is precisely
his professional status as an advocate that renders him a “fit and proper
person” for judicial candidacy. The GCB Rules are crystal clear: It is
“undesirable for a member to express an opinion in the press, by
letter, article, interview or otherwise on any matter which is still pending in the
Courts.” This is not restricted to a matter in
which the advocate appeared or was instructed. In his Response to the Complaint
Gauntlett states that “the
question whether the 'reasons' released by the JSC secretariat are, in law, its
reasons will shortly (from what I understand) be an issue in an impending
proceeding.” This is a fact he knew even at the time of the
interview. Gauntlett admitted at
the time of the interview that he believed there were “constitutional grounds for a challenge” to the JSC decision. When asked if he intended litigating
the matter he claimed that: “I am not a litigant and I would not seek to
litigate my way into a judicial appointment. But there are a number of entities and individuals who, I know, are
considering that.” The
violation of the GCB Rules is clear – Gauntlett should have been even more
circumspect because he knew that “a number of entities and individuals” were
contemplating a constitutional challenge to the JSC decision. It appears therefore that Gauntlett’s
press statements were purely for his own aggrandizement and were calculated to
lend propaganda weight and assistance to the envisaged lawsuit.
1.5
Even if there was no “per se” violation of the GCB Rules, Gauntlett’s
actions crossed the ethical lines when viewed in context. An advocate who is participating or has
participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication if the lawyer knows or reasonably
should know that it will have a likelihood of materially prejudicing an
adjudicative proceeding in the matter.
The duty of an advocate not to conduct himself in a way that is
prejudicial to the administration of justice also constrains the advocate in
his communication with the press. This is made clear by the following cases. In November 2004
(reported in the SALR in 2006) Combrink
J said much in Moila’s case. First he said:
“(T)he crime of contempt of court, in the shape of scandalising the
court, is committed by the publication of 'words which tend, or are calculated,
to bring the administration of justice into contempt’”.
He then
quoted Kotze J in Re Phelan’s
case:
“Now nothing can have a greater tendency to bring the administration of
justice into contempt than to say, or suggest, in a public newspaper, that the Judge of the High Court of this
territory, instead of being guided by principle and his conscience, has been guilty of personal favouritism, and
allowed himself to be influenced by personal and corrupt motives, in
judicially deciding a matter in open Court.”
Effectively, Mr. Gauntlett’s response is that
nothing he said in the public newspaper comes within the scope of In Re Phelan above. The evidence is resoundingly obvious.
2.
Mr. Gauntlett’s Statement
About His UCT Involvement Is Misleading and Constitutes Lack of Candour With
the Cape Bar Council (a Tribunal).
2.1
Mr. Gauntlett asserts that: “…Mr Ngobeni does not disclose to you that
I was involved in the UCT Council process leading to his removal from his
position as Deputy-Registrar. His animosity dates from that time.” The nature of the “process” and the
alleged “removal” are not described in any meaningful sense. I demonstrate that the omission is
deliberate and is calculated to falsely portray me as an embittered person who
is driven by a penchant for score-settling and vengeful agendas as opposed to
principles.
2.2
In early October
2007, Gauntlett along with seven highly respected senior members of the Cape
Bar Council wrote to the Cape Times newspaper in support of former
constitutional and appeals court judge Johann Kriegler's comment that Judge
President Hlophe was "unfit for the Bench". Their denunciation came as all silks were invited to a
meeting on to discuss the decision by the majority of the Judicial Service
Commission (JSC) not to institute a formal inquiry into Hlophe's alleged
misconduct.[1] Within a few days, members of the
faculty of law at the University of Cape Town (UCT) also wrote to the Cape
Times to question whether Cape Judge President John Hlophe is fit to occupy his
position. "Judge Hlophe should consider whether his continuation in high
judicial office in our legal system will not further damage our constitutional
democracy," the group of 14 academics said in a letter to the Cape Times.[2]
2.3
On 17 October 2007 I
penned an opinion piece in the Cape Times titled “Why Hlophe should remain as judge president” in which I responded
to the calls by the Cape Bar and UCT faculty. Almost two months later, the UCT council appointed
Professor Barney Jordaan to investigate the following issues about me: (1) According to Gauntlett “the UCT Council
… authorised an inquiry into Mr Ngobeni's appointment as Deputy Registrar of
UCT. Charges included his failure to disclose his disbarment in the US and
criminal convictions.” Professor Jordaan clearly found that I did not have a
criminal conviction and rejected the allegations after finding that I was not
disbarred as I was allowed to resign from the Connecticut Bar. Jordaan found that my employment was
proper notwithstanding these allegations against me. (2) Professor Barney Jordaan, was also instructed to conduct
an inquiry into Ngobeni’s “public statements” on the Hlophe controversy. On this score Jordaan also concluded
that: “there does not appear to be any basis for action against Mr Ngobeni…His
public utterances about the Hlophe matter, expressed in his private capacity,
were not directed at his employer.“Nor were they of such a nature that one can
say that they harmed the good name and reputation of the university.”
2.4
When the inquiry was initially
announced in December 2007, I questioned the palpable conflict of interest in
the matter. Given that Gauntlett
and some of the UCT professors addressed in my October 17, 2007 were members of
UCT council, I questioned how they could have participated in any decisions
regarding investigations of my criticism of these same persons. I was assured by both the Registrar and
then Vice-Chancellor Ndebele that Gauntlett played “no role whatsoever” in the decision leading up to the establishment
of the inquiry.
2.5
For a period of more than
four months, the UCT council withheld the favourable findings from myself and
members of the public who had been told about the investigation.
2.6
Mr. Gauntlett knows very well that the Vice Chancellor of the UCT
ultimately issued a public apology for having withheld from the public the
result of the same investigation.
The Vice Chancellor Prize stated: “The Council sought, and accepted,
independent legal advice that was given at the time, viz. that these matters
had no bearing on his employment at UCT and that he was not obliged to reveal
them if we did not specifically ask him about them. I believe UCT erred in not
making it public at the time that we had cleared Paul Ngobeni of any suggestion
that he misled the university. There can be no question that we should have
done so."
2.7
The UCT instituted another
disciplinary inquiry in 2009 which also had to do with an Op-ed piece I wrote
for the Cape Times regarding the attacks on JP Hlophe by the Cape Bar. Amongst others, the following charges
were brought against me: “It is alleged that you conducted yourself in a manner
that prejudiced the efficient administration of the University, in that in an
article that you wrote for publication in the Cape Times, which was published
on or about 17 October 2007, you accused the professorial members of the
Faculty of Law, including the Dean, of being racist, of misleading the public,
of having a secret agenda to undermine Blacks in ‘higher’ judicial positions,
and of rushing to ‘lynch’ Judge President Hlophe. I was cleared in that as well. See, Panel cleared deputy registrar of defamation. By Franny Rabkin;Business
Day (South Africa); June 27,
2009; http://www.accessmylibrary.com/article-1G1-202543221/panel-cleared-deputy-registrar.html. At the peroration of the disciplinary matter and after
a verdict in my favour had been rendered explicitly rejecting the UCT request
for sanction of dismissal, I was offered employment as a Special Advisor to
Minister Lindiwe Sisulu and I resigned my employment at the UCT. I was not “removed” from my UCT
employment.
2.8
In light of the clear and unequivocal statement by both the UCT
registrar and Vice Chancellor that Gauntlett played no role “whatsoever” in the
UCT inquiries, Gauntlett’s statement that he “was involved in the UCT Council
process leading to his removal from his position as Deputy-Registrar” must be a
feckless falsehood. It is reckless
approach consisting of false and misleading statements to the Cape Bar Council
– it is designed to maximize and exaggerate Gauntlett’s role and suggest that
my entire complaint is vengeful and actuated by hostility stemming from his
“role” in effecting my “removal” from the UCT. I demand that
the Bar Council investigate the nature and extent of Gauntlett’s alleged
involvement in light of statements showing that he is misleading the Bar
Council. I maintain that Gauntlett
had clear and undeniable conflict of interest which would have made it highly
improper for him to participate in the UCT Council process leading to my
alleged “removal.” His claim of
involvement suggests that he blithely ignored the conflict and participated in
a matter he was not supposed to participate in or Gauntlett is lying now in
order to furnish an alleged motive for my misconduct complaint against
him. As a member of UCT council
who had engaged me in a public debate Gauntlett could not lawfully use his
position as a UCT Council member to punish me or seek my “removal” for
statements I made in a newspaper editorial which were critical of the position
he held. The Bar Council is faced
with an unequivocal admission from Gauntlett that he indeed played the role he
now claims. That was improper and
unethical perversion of the course of justice at the UCT.
2.9
According to one dictionary, “removal” means “dismissal from office” http://www.thefreedictionary.com/removal According to the Oxford Dictionary’s definition,
removal means “the dismissal of someone from a job.” The Macmillan English Dictionary describes removal as “the
process of making someone leave a job or position of power.” Gauntlett leaves the false impression that I was dismissed
from my position at the UCT when he knows very well that I was cleared by two
separate inquiry panels. In
assessing the respondent’s version it will be borne in mind what is required of
a legal practitioner in disciplinary proceedings. In Prokureursorde van Tranvaal v
Kleynhans 1995 (1) SA 839 (T) Van Dijkhorst J pointed out that it is
wrong for the practitioner (in that case an attorney) to approach the matter
like a criminal case: to simply deny factual averments without further
elucidation and to put the applicant to the proof thereof. It is accepted that
a disciplinary enquiry and the proceedings are sui generis. A practitioner is expected to cooperate
to furnish the necessary elucidation so that the full facts are before the
court to ensure that a correct and fair adjudication of the case takes place.
General denials, evasions and obstructionism have no place in disciplinary
proceedings. The approach with regard to advocates must be the same. Misrepresenting the facts in order to
discredit a complainant, to create a fictitious motive or to manufacture a
reason for alleged “hostility” for the Complaint is not in keeping with the
Court’s ruling in Prokureursorde van Tranvaal v Kleynhans.
2.10 The admonition by Hefer J.A, in Kekana v Society of Advocates of South Africa [1998] ZASCA 54; 1998
(4) SA 649 (SCA) at 655G-656A must be borne in mind. There the learned judge
stated the following –
“I share the view expressed in Olivier’s case supra
at 500H ad fin that, as a matter of principle, an advocate who
lies under oath in defending himself in an application for the removal of his
name from the roll, cannot complain if his perjury is held against him when the
question arises whether he is a fit and proper person to continue practicing.
I also support Heher J’s observation in the present case that
‘(t)he word of an advocate is his bond to his
client, the court and justice itself. In our system of practice the courts,
both high and low, depend on the ipse dixit of counsel at every turn.’
C.
Conclusion:
I
respectfully request that the Bar Council investigate and make a finding that:
(a)
Mr. Gauntlett media or press statements constitute per se violations of GCB
Rules of Professional Conduct which prohibit Advocates from expressing a
personal opinion to the press or other media about the facts or issues arising out
of any anticipated or current proceedings in which they are briefed, expect to
appear or have appeared;
(b)
Mr. Gauntlett’s statement about his UCT involvement is false,
misleading and constitutes lack of candour with the Cape Bar Council (a
Tribunal).
Respectfully Submitted
Paul M. Ngobeni
[1] See, Hlophe
has no place on Bench, say legal gurus; October 9 2007 By Karen
Breytenbach. http://www.iol.co.za/news/politics/hlophe-has-no-place-on-bench-say-legal-gurus-1.374031#.ULXjQ4XSSUc
[2]
See, UCT law professors in attack on Hlophe; October 11 2007 By Karen
Breytenbach. http://www.iol.co.za/news/politics/uct-law-professors-in-attack-on-hlophe-1.374345#.ULXkmoXSSUc
