Militant Mpofu facing host of new challenges
Top EFF man’s legal skills will be greatly needed – and mightily contested
DALI Mpofu can’t comment on a sitting matter. He’s not allowed to. But if he wasn’t an advocate or the chair of the Johannesburg Bar Council, and only an EFF MP, he would surely have fired off an enfilade of tweets directed at this week’s villains: President Jacob Zuma, legal counsel Hilton Epstein, Pretoria High Court Judge Neil Tuchten and, probably, police commissioner Riah Phiyega and outgoing North West police commissioner Lieutenant-General Zukiswa Mbombo.
Had Mpofu, an inveterate Twitterer, done that on Monday after a disappointing session in court, he would probably have been besieged by new followers to add to his existing 64 700.
Tuchten, of course, threw out the application from injured Marikana miners and affected families who’d sought an order compelling Zuma to make the findings of the Farlam inquiry public immediately.
The inquiry sat for nearly 300 days and at least 50 people testified, but the judge’s gavel was succinct: “I make the following order, the application is dismissed.”
The nation groaned along with the applicants and their lawyers, particularly Mpofu, who is representing the injured and arrested miners and the Association of Mineworkers and Construction Union.
The president, who received the report three months ago, came across as almost laissezfaire in his counsel’s words, saying he had “other commitments”.
Mpofu retorted in court: “He is saying he needs three months, in other words 12 weeks, to study and consider the report, but he’s saying the applicants must have six weeks to study, consider and also to litigate, but viewed objectively that’s an irrational postulation.”
True to the discipline of his profession, however, Mpofu was tweeting instead on Monday and Tuesday, not only about his party’s launching of a national student congress but also about how the South African government had let Sudanese tyrant Omar al-Bashir escape the justice of the International Criminal Court.
“I don’t give a damn about the ICC or al-Bashir,” Mpofu bellowed. “The BIG ISSUE: Defiance of a SOUTH AFRICAN Court Order by a SOUTH AFRICAN President #EndOfRoad!” And he went on: “The defiance of ANY court order by the Executive & President is the biggest threat to our democracy & Constitution since 1994 #Dictatorship!!”
A fan of the hashtags #wipesweat, #denyeverything and #radicalchange – not to mention #paybackthemoney – Mpofu has also shown his comic side on the social networking service, making him accessible to everyone from bribe-defending demagogues and former comrades to the wits and rabble-rousers.
Describing himself on Twitter as “fighter, national chairperson of the EFF, father, husband, Chiefs fan, former labourer, political detainee, acting judge and CEO”, his lashout on May 28 was amply retweeted: “It’s the first time in my life that I am happy Bafana lost… to MALAWI. It’s our APOLOGY for the xenophobic President who mocked your roads!!”
But the events which are obsessing Mpofu right now are desperately serious. Together with the other legal representatives acting on behalf of the communities, he wants 48 hours’ notice from the president before Zuma finally releases the Marikana report.
It is expected by June 30, 10 days from now, with everyone touched by its contents wanting to understand what really led to the 44 deaths at Lonmin’s platinum mine in 2012.
And there’s a further pressing concern.
If Zuma were to delay beyond the August 16 anniversary – upon which the three-year prescription period for launching civil claims would, generally, then expire – those represented would not be able to prepare civil suits. Epstein’s comment, that releasing the report only later, will not trample on the dignity of the victims, came across as an insult to that very dignity.
Even if Zuma were to release it in a month’s time or, say, at the end of July, this would, as Mpofu said, give the applicants’ teams very little time, and probably not enough to litigate.
It was the president himself who set up the inquiry, primarily to investigate if the police were justified in using “lethal force”.
Stoic, Mpofu said this week that he anticipates the report will indeed be made public within the next 10 days. His clients want, and have a right, to understand as soon as possible who played what role, and why – not only in managing what was a wildcat strike at Lonmin, but also the intentions of the Lonmin management and governors and, critically, why the police acted as they did. At least 78 were wounded, while 34 were killed. Ten were also killed in the days leading up to the massacre.
Mpofu and Advocate Dumisa Ntsebeza, legal counsel for the dead miners and a former senior member of the Truth and Reconciliation Commission (TRC), laid down an important gauntlet. Nelson Mandela released the TRC report at exactly the same time (October 29, 1998) that it was released to him, when he was then the president.
But there are many who would say the administration of South Africa’s democracy has shifted since then. Mpofu would undoubtedly count himself among those.
When he left the ANC in late 2013 after being an outspoken member for 33 years, he blamed the “internal paralysis” of the ruling party.
He expressed a concern that if one of the world’s most predominant liberation movements did not act, it would be “irrelevant to the broader revolution”.
The media gave his resignation a significant amount of attention, and it trended on Twitter, although most in the ANC brushed off his every syllable, maintaining there was only one position: ANC for life.
To that Mpofu says, “in the fullness of time, they (the ANC) will see they are just hanging on to the sentiment and the name. We have to accept that addressing the needs of those people has to be done at the expense of those who have, so we can have the hope of achieving stability”.
Since he quit, Mpofu – who has been a controversial figure at least since he was alleged to have had an extra-marital affair with Winnie Madikizela-Mandela – has made it his business to show consistency in his radical ideology.
He even succeeded in staving off criticism that he was representing the Marikana miners only to make money, by revealing that while the police were represented by a team of seven lawyers, each earning up to R30 000 a day, he had asked the State for a legal aid rate of about R15 000.
Mpofu had previously been targeted over a R13.4-million payout he received from the SABC after he left his job as chief executive there, following a broadly unhappy tenure, in 2009.
But while he was voted founding chairman of the EFF in December, placing him in the party’s top six, it was his legal work which had retained a certain talismanic status, particularly with Julius Malema and the rebellious youth flanks of the ANC.
Mpofu represented Malema in his ANC disciplinary hearings, where Malema also received Madikizela-Mandela’s support, and all three came up against disciplinary committee chair, Cyril Ramaphosa.
Mpofu and Ramaphosa exchanged verbal blows last year when the Farlam inquiry was used for a to-and-fro over whether Mpofu had asked Ramaphosa to expedite his silk, as Ramaphosa had claimed.
Mpofu was adamant he had not mooted this with the deputy president, and a month or so later was finally awarded his SC, one of only 30 black advocates to achieve this status in the country.
His expressed new politics is likely to be challenged more and more over the coming years in the most complex and erudite of arenas – the courtroom.
Right now, as civil society bodies, including the United Front, the Right-to-Know campaign, Section27, the Marikana Support Campaign, the Treatment Action Campaign and the African Diaspora Forum, fight for the old apartheid causes – the freedom not to be detained without trial, from all forms of violence, from torture, of expression, and the rights to human dignity, privacy, to assemble, demonstrate, picket and present petitions – Mpofu could find that his militancy is both demanded and tested.