Facts, law will decide ‘legal derby’
Dali Mpofu (for the public protector) and Tembeka Ngcukaitobi (for her ex-operations chief) played to their case’s strengths
Twitter dubbed it “the Legal Derby”: two of South Africa’s favourite advocates, Dali Mpofu SC and Tembeka Ngcukaitobi, who are usually on the same side in the big political cases, but this time arguing on opposite sides.
It’s a cute analogy, although there are immediate problems with it. For one thing both would insist on being Kaizer Chiefs (because, clearly, legal acumen does not equate to good football choices).
More fundamentally, unlike in football where almost everything depends on the talent, form and skill of the players, and on the coach, court cases are almost always decided on the facts and the law. It is rare for counsel, no matter how excellent, to turn a bad case into a winning one.
Still, there is, like in football, a certain amount of strategy involved — evident in this case by which aspects of the dispute Mpofu and Ngcukaitobi chose to emphasise in their oral arguments.
The case was a fight between public protector Busisiwe Mkhwebane and her former chief operating officer, Basani Baloyi, who says she was axed from her job because she stood up to Mkhwebane’s abuse of power. She wants the court to order her reinstatement and to declare that the public protector breached her constitutional duty to act without fear, favour or prejudice.
Gordhan and Ramaphosa and Mcbride were all very interesting, but had nothing to do with the real dispute, Mpofu said. This case was, at its heart, about whether the public protector had committed an unfair labour practice in how she dealt with Baloyi’s probation. And unfair labour practices fell exclusively within the jurisdiction of the labour courts, he argued.
“The case is about probation, and about whether the probation was impliedly extended or whether her employment was confirmed by operation of law,” said Mpofu.
Mpofu explored the long line of cases that dealt with what has, for years, been a thorny issue in law: when do you go to the labour courts and when do you go to the high court and when can you go to both.
He said the Constitutional Court had decided that a judge must “interpret the pleadings and then characterise the case” — to find the “essence” of the dispute on a proper interpretation of the pleadings and not just by looking at the words used by the applicant.
“It doesn’t help to clothe it in all sorts of clever language and try to make it what it is not ... If you take a pig and give it lipstick and all sorts of things, it will still run to the dam.”
Ngcukaitobi had argued that this case was one of concurrent jurisdiction, allowing Baloyi to make a choice as to which forum to go to, but Mpofu said there was a sound administration of justice rationale for being strict about jurisdiction — to avoid litigants “forum shopping”.