Wednesday, December 12, 2012

Second Misconduct Complaint Against Jeremy Gauntlett By Paul M. Ngobeni


 
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  

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