The nine lives of Jiba en Mrwebi
27 June 2019
The Constitutional Court (the Court) today handed down judgment in the General Council of the Bar of South Africa v Jiba and Others matter. The Court dismissed the General Council of the Bar’s (GCB) application for leave to appeal the judgment of the Supreme Court of Appeal (SCA) that found that both Jiba and Mrwebi should not be not removed from the Roll of Advocates.
Jiba and Mrwebi were initially struck from the Roll of Advocates in September 2016, after the Gauteng High Court in Pretoria (the High Court) agreed with the GCB that they were neither fit nor proper to be advocates. Section 7(2) of the Admission of Advocates Act states that an advocate may be struck off the Roll of Advocates if the High Court is satisfied that he or she is not a fit and proper person to continue to practise as an advocate. The case was based on the manner in which the pair conducted themselves in the dropping of charges against former Crime Intelligence Head Richard Mdluli in 2011, among others. The High Court was critical of the pair’s conduct in relation to those proceedings. Furthermore, the High Court found that Jiba and Mrwebi had lied in their affidavits and that they had suppressed information with the intention to mislead the High Court.
The matter then went to the SCA in July 2018, where the High Court's ruling was overturned, and it was held that Jiba and Mrwebi should not be struck off the Roll of Advocates. The judgment was split among five judges - three ruled in favour of Jiba and Mrwebi and the others disagreed and made a dissenting judgment. The majority judgment found that the GCB could not establish any misconduct on Jiba’s part and that the evidence presented by the GCB, together with Jiba’s explanation, did not establish the alleged offending conduct on a balance of probabilities. In respect of Mrwebi, the majority accepted that misconduct was established against him but there was no evidence of dishonesty because he did not gain from the misconduct. Despite these findings, the SCA agreed with the High Court that as advocates, Jiba and Mrwebi were not measuring up to the required standard of integrity and honesty.
The GCB then approached the Constitutional Court for leave to appeal the SCA’s ruling (i.e. to have the SCA’s judgment overturned). In order for a matter to be heard in the Constitutional Court, certain requirements must be met. The CGE failed to show and prove that there was a constitutional issue to be heard, that interpretation of the Constitution was needed or that a constitutional right needed to be protected. The Court therefore dismissed the application for leave to appeal on the grounds that it had no jurisdiction over the matter. This means that both Jiba and Mrwebi remain Members of the Bar and are able to seek and obtain work as advocates - except at the National Prosecuting Authority, for now.
It is important to note that the pair were relieved of their duties at the NPA by the President earlier this year. The decision followed the recommendations made by the Mokgoro Commission of Enquiry into the fitness of the two to fulfil senior positions within the NPA. The Mokgoro Commission Report, released in April 2019, held that in general, on the cases relating to Advocate Jiba that
“...the Courts’ observance of Jiba’s attitude throughout the course of the various reviews was characterised by non-responsiveness and irreverence towards the Courts. Furthermore, Jiba lacked accountability and sought to shift responsibility when she was expected to act under an order”.
The Commission emphasised that prosecutors are officers of the Court and are duty-bound to assist the Court, and, in doing so, uphold the Rule of Law. In relation to Advocate Mrwebi, the Commission specifically held that he did not act with integrity as required in terms of the National Prosecuting Authority Act and the manner he fulfilled his duties “…was openly at variance with what is expected of a person in his position”.
The President’s decision to fire them, his reasons, as well as representations provided by the advocates, must be submitted to Parliament within 14 days - if Parliament is in session. If not in session, then within 14 days after Parliament commences again. Parliament is then required to pass a resolution within 30 days of receiving such notice (or as soon as reasonably possible), stating whether the removal is recommended or not.This decision of the President is still awaiting parliamentary approval, as the fifth Parliament had risen at the time the decision was given. It is imperative that the sixth Parliament address this matter with urgency as the last cog in the final standing of Jiba and Mrwebi. Following the Court’s findings today, Jiba’s legal representatives have indicated that depending on the findings of Parliament in relation to the President’s decision, they may take the Mokgoro Commission Report on review.
One must be cautious when considering the Constitutional Court’s findings as there was no proclamation on the merits of the matter. The judgment did not endorse or absolve Jiba and Mrwebi of their misconduct. Both the High Court and SCA judgments acknowledged the pair’s dishonesty, unscrupulous behaviour and grave misconduct. This must be emphasised as it is critical that advocates should be “fit and proper” people if they are to carry out their important responsibilities. Where multiple courts and a Commission established in terms of the NPA Actfind adversely against them on the merits, caution must be exercised in addressing where in the judicial system they may be located.
By Ms Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights, 27 June 2019