TWO Johannesburg advocates, Kgomotso Moroka SC and Mahlape Sello, have become entangled in the disciplinary inquiry of former prosecution head Menzi Simelane, after he told the disciplinary panel that decisions he is in hot water for were made "collectively" with the two or on the advice of legal teams they were part of.
Eight years after the dramatic inquiry, chaired by former speaker Frene Ginwala, into the fitness for office of former national director of public prosecutions Vusi Pikoli, the effects are still being felt. Mr Simelane, a member of the Johannesburg bar, faces disciplinary charges — which could even lead to an application that he be struck off the roll of advocates — about his role at the Ginwala inquiry.
Mr Simelane, now an adviser to Human Settlements Minister Lindiwe Sisulu, is accused of having given dishonest testimony and contradictory evidence under oath.
One of the charges relates to correspondence between Mr Pikoli, former justice minister Brigitte Mabandla, and former president Thabo Mbeki, in which Mr Pikoli was instructed, unlawfully, not to arrest and charge former national police commissioner Jackie Selebi for corruption until Ms Mabandla was "satisfied" there was enough evidence to do so.
At the time, Mr Simelane was the director-general of the justice department.
At the bar council’s disciplinary inquiry, Mr Simelane was accused of breaching his professional duties by suppressing "clearly relevant" evidence because he did not hand over the letters to Mr Pikoli’s lawyers. But when he was questioned about it last year, he said decisions about which documents were handed over were taken collectively by the government’s legal teams or on their advice. The teams included Ms Moroka and Ms Sello. The disciplinary panel, chaired by Sias Reynecke SC, then asked the two to come and answer questions about who was ultimately accountable for the decision not to disclose the letters.
However, at the disciplinary inquiry’s sitting on Saturday, Ms Moroka and Ms Sello said they could not answer the questions, as this would breach attorney-client privilege, something they were duty-bound to protect.
Ms Moroka’s counsel, Vincent Maleka SC, said she did not do so "lightly", but only after getting advice from a senior attorney and from counsel. He said answering questions about who was ultimately accountable for the decisions would mean revealing discussions between client, attorney and counsel — something "clearly covered" by privilege.
But he faced a number of questions from the panel, who said they were not asking for the content of the discussions, but only for the ultimate decision.
Dali Mpofu SC, one of the members of the three-person panel, said the disciplinary hearing was in a predicament because of Mr Simelane’s defence, and needed to get to the bottom of it.
Roshan Bedhesi SC, counsel for Ms Sello, said it was wrong of the panel to go on an "evidentiary drive", calling the panel’s questions a "witch-hunt".
He said if Ms Sello said it was her who ultimately decided not to disclose the letters, she would "be the next person sitting in that chair" (pointing to Mr Simelane).
Mr Simelane’s counsel, Omphemetse Mooki, said the panel’s approach suggested it did not believe Mr Simelane.
He said Mr Simelane had answered the questions the panel was asking of Ms Moroka and Ms Sello and his evidence was not disputed by the bar council’s pro-forma prosecutor Mike Hellens SC.
But Mr Hellens said he would argue that the information sought by the panel was not covered by privilege, saying there may be repercussions for the advocates.
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