Pretoria - The General Council of the Bar (GCB) will approach the Constitutional Court to have another look at the latest judgment which gave Deputy National Director of Public Prosecutions, Nomgcobo Jiba and Special Director of Public Prosecutions, Lawrence Mrwebi the go-ahead to practice as advocates.
The majority of members of the GCB, during a meeting held this weekend, felt that the pair should not be allowed to practice as advocates.
The GCB was earlier successful in its application to the Gauteng High Court, Pretoria, to have the pair’s names struck from the roll of advocates. The council said they were not fit and proper people to serve as advocates. The high court, in a scathing judgment against especially Jiba, agreed.
The Supreme Court of Appeal in Bloemfontein, however, this month upheld an appeal by the pair against the high court judgment.
While the SCA found that the conduct of both Jiba and Mrwebi was perhaps not at all times impeccable, the majority of the judges held that it at most warranted a suspension and not having their names removed from the roll.
Two SCA judges, in a minority judgment, however agreed that their appeal should be dismissed and that their names should be struck from the roll of advocates. The found that Jiba’s conduct extended beyond mere incompetence or unsuitability for the position as DNDPP, but that her conduct demonstrated a disregard of the duty of an advocate. A similar finding was made in regards to Mrwebi. The two judges pointed out that the GCB was the watchdog of the profession and it owed a duty to the public to ensure that advocates met the highest standards of integrity.
The GCB, during its annual general meeting this weekend, discussed the SCA judgment and voted on the subject. Francois Botes, Chairman of the Pretoria Society of Advocates, said 18 members voted in favour of taking the mater to the Constitutional Court, while 12 members voted that the GCB should abide by the SCA judgment. Two members elected not to vote.
“It is absolutely the right decision to approach the Constitutional Court,” Botes told the Pretoria News. The GCB will, however, first have to approach the highest court in the country for leave to appeal against the SCA judgment.
In the majority judgment, SCA Acting Deputy President Jerry Shongwe said regarding Jiba: “Perhaps one may infer some form of incompetence with regard to her duties, which may be a ground to remove her from being the DNDPP, but it is not sufficient enough to be removed from the roll of advocates.”
Regarding Mrwebi, the SCA said it was prepared to find that the GCB succeeded in establishing some wrongdoing on his part, but because there was no personal gain from Mrwebi’s conduct, the sanction handed down to him was not justified. Mrwebi was suspended by the SCA as an advocate for six months, but this was backdated to September 2016, when the original high court judgment was delivered.
Jiba and Mrwebi, in turning to the SCA, said they at all times acted in good faith and were merely exercising their duties under the auspices of the NPA Act when they took several high profile decisions.
This included the decision to drop fraud and corruption charges against suspended crime intelligence head, Richard Mdluli.
Judge Francis Legodi, who together with Judge Hughes, ordered that the pair be struck from the roll of advocates, in 2016 among others severely criticised them for not prosecuting Mdluli. He commented that he could not believe that two officers of the court who hold top positions in the NPA, would “stoop so low” to protect one individual (Mdluli).
He added that they did not only bring the prosecuting authority and the legal profession into disrepute, but they have also brought the office of the president into disrepute by failing to prosecute Mdluli.