The National Prosecuting Authority's (NPA) legal representatives came under fire in the North Gauteng Hight Court on Tuesday over National Director of Public Prosecutions Shaun Abrahams' insistence that advocates Lawrence Mrwebi and Nomgcobo Jiba were good at their jobs – even after adverse findings against them.
Judge Gregory Wright was questioning advocate Hilton Epstein during the application brought by Freedom Under to order President Jacob Zuma to constitute an inquiry into Jiba and Mrwebi.
"The minister of justice conveyed a message from Mr Abrahams to the president that two advocates were performing their functions well...
"What do you say about the quality of the opinion of Mr Abrahams that advocates Jiba and Mrwebi were performing well given the nature of the judicial findings against them."
Epstein responded, saying: "His view was that although there was criticism, it was not sufficient to suspend them, that was the view that he took."
Judge Billy Mothle asked Epstein when Zuma knew about the judge's remarks against the two advocates.
"You see the paragraphs that you are referring to here, they do not stipulate the time when he knew. For example, where he says, I was made aware by the minister of adverse remarks made by judges," Mothle said.
"Was is the first time he heard this and when was this... Before all these cases, when did he become aware and what did he do when he became aware of these adverse findings?"
Epstein said Zuma might have known about the matter after the Democratic Alliance wrote him a letter. The General Council of the Bar (GBC) applied to have the pair removed following several adverse findings against them.
He said Zuma wanted to act after the decision by the GBC he was aware that they had already brought an application to court against Jiba and Mrwebi.
The General Council of the Bar brought a case against the pair because of their handling of cases, including dropping charges against suspended head of police crime intelligence Richard Mdluli, the prosecution of Zuma on corruption charges, and of suspended KwaZulu-Natal Hawks head Johan Booysen.
On Monday, Freedom Under Law advocate Max du Plessis told the court Zuma delayed in instituting an inquiry into the fitness of Jiba and Mrwebi despite notifying him about the matter.
"The president had been given ample time to act. Freedom Under Law brought the matter to his attention and he was also questioned in Parliament."
"He said he will make a decision after the GBC have dealt with the matter. When the GBC made their decision he still failed to act," Du Plessis said.
FUL wants the court to declare Zuma's failure to institute an inquiry into the conduct of Jiba and Mrwebi as unlawful and to direct the president to institute such an inquiry.
Last year September, Jiba and Specialised Commercial Crimes Unit head Mrwebi were struck from the roll of advocates.
In January, the duo were granted leave to appeal the judgment. Judge Wendy Hughes said they provided compelling reasons for their appeal to be heard, but warned that they may fail.
In February‚ Zuma decided not to suspend Jiba and Mrwebi‚ or to institute an inquiry into their conduct.
The president said having considered that the high court has granted Jiba and Mrwebi leave to appeal against an order striking them off the roll of advocates‚ he decided not to suspend them pending finalisation of the appeal process.
Du Plessis argued that Zuma erred in his decision and should have acted long before even matter was heard in court.
"There was prima facie evidence to institute an inquiry. When there's prima facie evidence duty must be exercised, it's not a matter of discretion but duty."
Espein said FUL's application should be set aside, citing that it was premature and they should have waited for the matter to be finalised at the Supreme Court of Appeal.
Judgment was reserved.