I’m just a lawyer, says Notyesi
The Mthatha attorney is angered by a tweet alleging he sways the high court and the JSC
Mthatha attorney Mvuzo Notyesi is at a loss to explain why anybody would claim that he “wields an enormous power” in the Eastern Cape city’s high court — specifically that cases go his way and judicial appointments are based on his influence.
“I’m just a lawyer going to court, just like any other person,” he says.
The allegations were made by a Twitter user after the fraud and corruption case of Teris Ntutu, the secretary of the ANC’S Amathole region, was removed from the Mthatha high court’s roll in April.
The tweet appeared above a photograph of Notyesi speaking at what appears to be a sitting of the Judicial Services Commission (JSC), the body that recommends judicial appointments. The tweet reads, “We’ve always been told that a certain person wields an enormous power in the Mthatha high court division. As such, very rare, cases involving him or his kind are dismissed or are lost. The judges apparently know that their ascension to higher positions depend on him. The JP [judge president] too.”
“I’ve seen that tweet — it is problematic,” Notyesi said. “It suggests that all judges in some way can be influenced. That’s a direct attack on the independence of the judiciary.”
Notyesi was a member of the South African Youth Congress at school. “We grew up under the congress movement,” he says.
Apart from running his practice, he is the president of the National
Association of Democratic Lawyers and the former cochair and president of the Law Society of South Africa, of which he remains an executive member and which he represents on the JSC.
His representation of some clients — such as Ntutu and Eastern Cape public works MEC Babalo Madikizela in an application against public protector Busisiwe Mkhwebane — puts him at the centre of ANC factional battles.
Madikizela opposed Oscar Mabuyane’s re-election as the ANC’S Eastern Cape chairperson.
Notyesi is vocal on professional matters at every level and has not shirked from raising tough issues at the JSC, but he is adamant he has no special ability when it comes to influencing the outcome of cases or the appointment of judges.
“I’m a member of the JSC. That [Twitter] statement actually undermines men and women of that body. It undermines the chief justice himself, if there can be one person with a particular power.
“Go to Saflii [the Southern African Legal Information Institute] and see how many judgments I have lost since 1999. Those people on Twitter, they even write that ‘if you want a losing lawyer in the Eastern Cape, go to Notyesi’.”
A few weeks before the tweet, Notyesi’s questioning at a JSC hearing kiboshed Gauteng Judge David Unterhalter’s latest attempt to ascend to the constitutional court.
Notyesi pedantically asked all the candidates for the two vacancies if they would recuse themselves if a matter came before them in the constitutional court, when they had previously adjudicated the same matter in the supreme court of appeal (SCA).
All, including Unterhalter, agreed to the proposition that in such circumstances, a judge should recuse him or herself. But Unterhalter was caught flatfooted when Notyesi pointed out he had dismissed a petition for leave to appeal while acting in the SCA, and subsequently sat as a member of the constitutional court bench in an appeal hearing on the same matter.
Notyesi was at pains in the JSC hearing to state that he was not trying to catch out Unterhalter, an assertion he repeated when asked why he had not simply put a direct question to Unterhalter only, rather than asking all the candidates.
“As far as I participate in the JSC, each and every question I ask anyone is genuine, is based on something I want to test. I would never do anything that seeks to attack or impugn the integrity of a candidate — these are people who are role models to me. My role there is simply to assist the commission to get the right person, but I cannot set up someone, I cannot be malicious.
“I want a judiciary that can be trusted, that people have confidence in. That can only be done if you have a judiciary made up of men and women who are competent and have integrity and are credible. I cannot go there and support any mediocrity.”
As for the state of the profession, he says democratic South Africa’s separate but equal legal profession is a disappointment.
“What we struggled for was to have a single profession regulated by a single regulator. The Legal Practice Act (LPA) failed us dismally. It achieved the single regulator but it still keeps us separate as attorneys and advocates. We must put an end to the distinction between attorneys and advocates.
“What the LPA has done so far — if that is an achievement — is merely bringing the government into the profession. On its own, it is not an ideal situation because you must maintain the independence of the profession at all times.”
Notyesi says new generations of lawyers in Mthatha eschew the human rights ethos of former practitioners, avoiding matters with constitutional import that would assert the citizenry’s rights to service delivery for more lucrative Road Accident Fund and medico-legal negligence cases.
“Mthatha should be one big centre for human rights work. It is mainly rural, having high levels of unemployment, with a large population, and it’s where there are mud schools. Litigation should be high.
“How much human rights or socioeconomic rights work is coming out of Mthatha? To answer your question directly, [a] very limited [amount]. We need lawyers to have a social consciousness, who are interested in leaving a legacy. I do understand that these days, legal practice is a business, it is not just a charity work. But there is an obligation to fulfil some public interest.”
He said the perception of the legal environment in the former Transkei as being corrupt — as suggested by the then health minister, Aaron Motsoaledi, in the context of the burden of medico-legal negligence cases — was unfair and not supported by objective facts.
“Give me five lawyers in the former Transkei area who have been charged on allegations of corruption. No one has been able to. I have been practising here for 23 years. I don’t recall a situation where you would say this Mthatha area is a haven of corruption. I’ve not seen things that are done in Mthatha which are different or totally disproportionate from what is done in other centres.
“I encourage lawyers to take up those medico-legal negligence cases. Those are the rights of the people, those people who have been wronged, those children who are born with cerebral palsy, they need to be represented, and lawyers must do that.
“I regret that in the process, there are some lawyers who become opportunistic and greedy and selfish. But where that happens, let it be dealt with.”
He also acknowledges allegations of corruption regarding the state attorneys’ offices and the biggest litigator in the country which controls billions of rands in costs relative to litigation on behalf of all government departments, including the Mthatha branch.
“There is no way we can say that there can be no wrong elements. One needs to tighten up the policies for the state attorney … which provide space for corruption.”
On the other hand, he says, the Mthatha high court is the most demographically transformed of any in the country.
“Give me one court where the entire court is a pure African one — the judge is a black person … 85% of those in the court are pure African, in terms of transformation. If there is a court that contributes in terms of transformation of the [high] court and the profession itself, it is Mthatha.”
And in a few years, he may be ready to apply for a position on the high court bench in the city. “One day I will go. It is my hope that I will go.”