APPLICATION TO BE BROUGHT AGAINST CERTAIN MEMBERS OF THE PROSECUTING AUTHORITY IN TERMS OF SECTION 7 OF THE ADMISSION OF ADVOCATES ACT, NO. 74 OF 1964

1 At a meeting of its Executive Committee on Saturday, 15 November 2014, the General Council of the Bar ("GCB") considered a request from the Office of the National Director of Public Prosecutions ("NDPP") that the GCB bring applications against three senior members of the NDPP in terms of section 7 of the Admission of Advocates Act, No. 74 of 1964 (""the Admission of Advocates Act"). The GCB resolved to make such an application in respect of all three members of the NDPP. Applications will be launched before the relevant High Courts as soon as they have been prepared. The individuals concerned are Advocates Nomgcobo Jiba, Sthembiso Lawrence Mrwebi and Sibongile Mzinyathi.

2 The request by the NDPP arises from the conduct of all three members of the NDPP as deponents to affidavits in several recent High Court applications. Trenchant criticism has been levelled at all three individuals in judgments of the High Courts and the Supreme Court of Appeal. The judgments are those in Freedom Under Law v National Director of Public Prosecutions 2014 (1) SA 254 (GNP); NDPP v Freedom Under Law 2014 (4) SA 298 (SCA); Booysen v Acting National Director of Public Prosecutions & Others [2014] 2 All SA 391 (KZD); and Zuma v Democratic Alliance (Case No. 836/2013) [2014] ZASCA 101 (28 August 2014). At the time of the relevant judgments Ms Jiba held the post of Acting National Director of Public Prosecutions. Mr Mrwebi was at the relevant times and still is Special Director of the Specialised Commercial Crimes Unit and Ms Mzinyathi was and still is the Director of Public Prosecutions: North Gauteng.

3 None of the individuals concerned is a member of any of the constituent Bars of the GCB. The GCB nevertheless considers that the judicial criticism of these three admitted advocates obliges it to accede to the request of the NDPP and to make application to the High Court in terms of section 7 of the Admission of Advocates Act.

4 The High Court enjoys exclusive jurisdiction to determine whether an advocate should be suspended from practise or struck from the roll of advocates. Section 7(1)(d) of the Admission of Advocates Act reads:

"....a Court of any division [of the High Court] may, upon application, suspend any person from practise as an advocate, or order that the name of any person be struck off the roll of advocates, if the Court is satisfied that he is not a fit and proper person to continue to practise as an advocate."

5 All admitted advocates are officers of the Court. The High Court has a duty to enquire into the conduct of all advocates who are entitled to practise before it when relevant facts are brought to its notice. The High Court, however, has no machinery to conduct investigations which may be necessary for this purpose. Accordingly, it is reliant on others to draw the relevant facts to its attention. Section 7(2) of the Admission of Advocates Act provides that the GCB is an entity which may make application to the High Court for the striking off or suspension from practice of any advocate.

6 In considering an application for the suspension or striking off of an advocate the Court has a discretion to be judicially exercised in the light of all the relevant facts and circumstances concerning the conduct of the advocate concerned. The three individuals concerned will, in due course, be served with a copy of the application concerning him or her and will be afforded an opportunity of putting such facts before the Court as they consider pertinent. The matters will be enrolled for hearing once the requisite affidavits by all parties have been delivered.

Statement issued by Jeremy Muller SC, Chair, General Council of the Bar, November 17 2014

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