Nearly 20 years after the truth & reconciliation commission (TRC) ended, who could have predicted its resurrection in a current court case? But it is playing a pivotal role in Ntsikelelo Mdyogolo’s application for admission as an attorney.
His application papers listed three convictions for criminal offences, including a puzzling 1994 armed robbery, with aggravating circumstances, of a petrol station. When he first applied to the Eastern Cape high court for admission last year, Mdyogolo disclosed that he had asked the TRC for amnesty in relation to this incident. Judge Clive Plasket postponed the case so Mdyogolo could provide supplementary material, including judgments in the robbery trial, along with his application to the TRC.
Reactivating his application more than a year later, Mdyogolo said the trial records had been destroyed. As to his amnesty application, he said he did not pursue the matter after his release on parole.
In considering the application, judges Plasket and Geraldine Beshe were assisted by the Eastern Cape bar, which produced the specially prepared affidavit of an academic historian. The judges were struck by the significant difference between the various accounts of the robbery: that provided by historical records, Mdyogolo’s version in his affidavit, and what he said in his amnesty application.
Mdyogolo told the court he was a member of the military wing of the Pan Africanist Congress (PAC) and that they raised funds via robberies. He had to obey orders from the "high command" and thus, on June 19 1994, he carried an R4 rifle while he "and other comrades" held-up a Fort Beaufort garage. In 1997 he was arrested, convicted and sentenced to 10 years for this crime. While serving time he applied for amnesty.
However, his amnesty application tells a radically different version: he was the hapless victim of the security police who got him drunk and coerced him into participating in a hold-up. This "underground operation of the police" aimed to "get rid of freedom fighters ... using double agents".
Whichever version was closer to the truth, by the time of the hold-up the PAC had declared a moratorium on violence and a democratically elected parliament was in place. Also, Mdyogolo could not have been granted amnesty because his crime was committed after the cut-off date. His account of the robbery was "bizarre and nonsensical", said the court, and showed someone unwilling to take responsibility for his actions while making up stories to his benefit. His explanation that he committed the robbery to further the aims of the PAC was obviously false.
A flawed character
The court made the crucial point that criminal conviction will not necessarily disqualify a lawyer. Former president Nelson Mandela was not struck from the roll of attorneys in the 1950s though he committed an offence by encouraging disobedience to the law. As the court put it then, nothing in the matter suggested "in the slightest degree" that Mandela was guilty of dishonest or dishonourable conduct and thus unfit to be an attorney. By contrast Mdyogolo’s was a gravely flawed character. Lying under oath, he lacked honesty, integrity and trustworthiness.
The court also expressed concern at the role of the Cape Law Society. Asked earlier to present its views on Mdyogolo’s application to the judges when the case resumed, the society simply endorsed his application, obviously accepting his claim that the robbery was politically motivated. Despite its grave responsibilities to the profession and the public, it inquired no deeper and the court was left to request help from the bar in making further investigations.
By the end of the judgment it’s hard to decide which is more reprehensible: the dishonest would-be attorney, or the organisation that couldn’t be bothered to do its duty by the public and the profession.