General Council of the Bar of South Africa v Jiba and Others (23576/2015) [2016] ZAGPPHC 833; [2016] 4 All SA 443 (GP); 2017 (1) SACR 47 (GP); 2017 (2) SA 122 (GP) (15 September 2016)

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[2016] ZAGPPHC 833
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General Council of the Bar of South Africa v Jiba and Others (23576/2015) [2016] ZAGPPHC 833; [2016] 4 All SA 443 (GP); 2017 (1) SACR 47 (GP); 2017 (2) SA 122 (GP) (15 September 2016)

h
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. 23576/2015
Reportable:
YES
Of
interest to other judges: YES
Revised.
15/9/2016
IN
THE MATTER BETWEEN:
THE
GENERAL COUNCIL OF THE BAR OF SOUTH
AFRICA
Applicant
and
NOMCGOBO
JIBA
1
st
Respondent
LAWRENCE
SITHEMBISO
MRWEBI
2
nd
Respondent
SIBONGILE
MZIYATHI
3
rd
Respondent
JUDGMENT
LEGODI
J;
HEARD
ON: 30 May - 1 June 2016
JUDGMENT
HANDED DOWN ON: 15
th
September 2016
[1]
'An important requirement for admission as an attorney or advocate is
to be a 'fit and proper' person. Lawyers are also struck
from the
respective rolls of advocates or attorneys if they cease to be "fit
and proper". The requirements of being "fit
and proper"
person is not defined or described in the legislation. It is left to
the subjective interpretation of and application
by seniors in the
profession and the ultimately the court. In the apartheid years, this
requirement was applied arbitrarily, but
today the question may be
asked why some lawyers who have been found to be a "fit and
proper'' do not act as such. The pre-admission
character screening of
lawyers seems not to be effective any more. Post admission moral
development is imperative'.
[1]
[2]
A successful practitioner, an attorney or an advocate, should possess
and display certain qualities, most of which cannot be
acquired
through learning. Having these qualities could indicate that a person
is indeed a "fit and proper'' person for the
profession. An
appropriate academic training may, however, play a vital part in
improving them- as they are "by nature at
least latent."
[3]
The following are listed as the least of qualities a lawyer should
possess:
'Integrity- meaning
impeccable honesty or an antipathy to doing anything dishonest or
irregular for the sake of personal gain,
-
Dignity- practitioners should conduct themselves
in a dignified manner and should also maintain the dignity of the
court.
-
The
possession of knowledge and technical skills,
-
A
capacity for hard work,
-
Respect for legal order and
-
A sense of
equality or fairness'.
[2]
[4]
This case is about whether the respondents, Ms Nomgcobo Jiba (first
respondent),referred to in these proceedings as "Jiba",
an
advocate who currently holds the position of Deputy National Director
of the Public prosecutions, Mr Lawrence Sithembiso Mrwebi
(second
respondent), referred to in these proceedings as "Mrwebi",
an advocate who holds the position of special director
of public
prosecutions and head of the crime unit within the prosecuting
authority and Mr Sibongile Mzinyati, third respondent
(Mzinyathi), an
advocate and a director of public prosecutions North Gauteng, are
"fit and proper'' persons to remain on a
roll of admitted
advocates in terms of
Admission of Advocates Act no 74 of 1964
.
[5]
The application has been instituted by General Council of the Bar of
South Africa ("GCB"), a voluntary association
with legal
personality functioning in terms of its constitution with its
constituent members comprising of 10 societies of advocates

throughout South Africa. GCB wants this court to consider acting
against the respondents as contemplated in
section 7(2)
of
Admission
of Advocates Act. The
section provides as follows:
"(2) Subject to
the provisions of any other law, an application under paragraphs (a)
(b) (c) or
(d) of subsection (1) for the
suspension of any person from practice
as
an
advocate or for the striking off the name of any person from the roll
of advocates, may be made by the General Council of Bar
of South
Africa, by the Bar
,
or
Society of Advocates for the division which
made the order for his or her admission to
practice
as
an
advocate or is ordinarily resident, and, in the case of an
application made to
a
division
under paragraph(c) of subsection (1) also by the State attorney
referred to in the State Attorney Act 1957 (Act no 56 of
1957)''.
[6]
During August 2014 and following the handing down of a judgment by
the Supreme Court of Appeal on 1 April 2014 in the matter
of Freedom
Under Law v National Director of Public Prosecutions and others
[3]
(Mdluli's case), GCB received a request from the office of the
National Prosecuting Authority (NPA) to consider bringing 'an
application
against the three respondents in terms of
section 7
(2)
of the
Admission of Advocates Act quoted
in paragraph 5 above. At a
scheduled meeting in November 2014, GCB considered the request and
decided to proceed to prepare the
present application which was
instituted on 1 April 2015 coincidentally exactly a year after the
SCA's judgment in Mdluli's case.
[7]
The gist of the complaints against the three respondents is based on
their conduct in the handling of Freedom Under Law v National

Director of Public Prosecutions and Others
2014 (1) SA 254
254 GNP;
NDPP v Freedom Under Law (see footnote 3) a case referred to in this
proceedings as Mdluli or FUL case and adverse remarks
made by both
the high and supreme courts in that case. Other complaints are
levelled against Jiba only and are founded on her handling
of the
following reported matters and adverse remarks made therein:
7.1
Democratic Alliance v Acting National Director
of Public Prosecutions,
[2013] 4 All
SA
610
(GNP), Zuma v Democratic Alliance and Others
[2014] 4
SA
35
(SCA), a case which ultimately became to be
known as a "Spy Tape" case and will be referred to as
such in these proceedings.
7.2
Booysen v Acting National Director of Public
Prosecutions and Others
[2013] 3 All SA 391
KZD."
[8]
The structure of this judgment will be as follows:
8.1
The test
8.2
Constitutional imperative and legislative
frame-work,
8.3
Points in Iimine,
8.4
Reasons for the order refusing Jiba's fourth
affidavit,
8.5
Booysen case,
8.6
Spy tapes case and
8.7
Mdluli case.
THE
TEST
[9]
Section 7
(1) (d) of the
Admission of Advocates Act authorises
a
court to remove an advocate from the roll of advocates, if satisfied
that he or she is not a "fit and proper" person
to continue
to practice as an advocate. The test is a contemplation of
three-staged inquiry as is also the -case in applying the
provisions
of
section 22
(1) (d) of Attorneys Act 53 of 1979. First, the court
must decide if the alleged conduct complained of has been established
on
a preponderance of probabilities. This is a factual inquiry.
Secondly, it must consider if the person concerned is in the
discretion
of the court not a fit and proper person to continue to
practice. This involves a weighing up of the conduct complained of
against
the conduct expected of a fit and proper person to practice.
This is a value judgment consideration. Thirdly, the court must
inquire
whether in all of the circumstances the
person
in question is to be removed from the roll or whether an order of
suspension from practice would suffice. This is also a
matter for the
discretion of the court. In deciding on what course to follow, the
court is not first and foremost imposing a penalty.
Rather, the main
consideration is the protection of the public.
[4]
CONSTITUTIONAL
IMPERATIVE AND LEGISLATIVE FRAME WORK
[10]
It is important to start by mentioning that all the complaints raised
against the respondents arise from the handling of three
review
proceedings instituted against the National Prosecuting Authority, in
terms of which certain decisions, two of which, that
is, in Mdluli
and Spy Tapes cases related to the withdrawal of criminal charges and
the other decision in Booysen case related
to the institution of
criminal proceedings. It is for this reason that a brief outlay of
the legislative-frame work governing the
authority and operation of
the prosecuting authority is necessary.
[11]
There is a single national prosecuting authority established in terms
of section 179 of the Constitution as determined in National

Prosecuting Authority Act
[5]
(the Act). The prosecuting authority has the power to institute
criminal proceedings on behalf of the state and to carry out any

necessary functions to institute criminal proceedings.
[6]
National legislation must ensure that the prosecuting authority
exercises its functions without fear, favour or prejudice
[7]
.
The National Director of Public Prosecutions must issue policy
directions which must be observed in the prosecution process, may

intervene in prosecuting process when policy directives are not
complied with, and may review a decision to prosecute or not
prosecute,
after consulting the relevant Director of Public
Prosecutions and after taking representations within a period
determined by the
National Director of Public Prosecutions from the
following: the accused, the complainant, any other person or party
whom the National
Director considers to be relevant
[8]
.
[12]
The "Act" is the brain-child of section 179 of the
Constitution, in particular subsection (4) which requires of a

national legislation to be enacted to ensure that members of the
prosecuting authority exercise their duties without fear, favour
or
prejudice. Chapter 4 of the Act deals with powers, duties and
functions of members of the prosecuting authority. Of relevance
to
the present proceedings, they have the power to institute and conduct
criminal proceedings on behalf of the state and have the
power to
discontinue criminal proceedings
[9]
.
On the other hand, and in accordance with section 179 of the
Constitution, the National Director may review a decision to
prosecute
or not to prosecute, after consulting the relevant Director
and after
taking
and considering representations from
the
accused, the complainant,
any
other person or party whom the National Director considers relevant,
within the period specified by the National Director.
[10]
This is a replica of what is provided for in section 179 of the
Constitution. The hierarchy in the exercise of powers, duties,
and
functions under Chapter 4 runs from the national director, deputy
national director, directors, deputy directors and down to
the
prosecutors.
[11]
Section 21 is
also important as it obliges and authorises the National Director to
determine prosecution policies, and issue policy
directions which
must be observed in the prosecution process.
[13]
A special director should exercise the powers, carry out the duties
and perform functions considered or imposed on or assigned
to him or
her by the President, subject to the directions of the national
director: Provided that if such powers, duties and functions
include
any of the powers, duties and functions referred to in section 20
(1), they should be exercised, carried out and performed
in
consultation with the director of
the
area of jurisdiction concerned
.
[12]
In
the present case, the second respondent was such a "special
director" and the third respondent such "director''

concerning the withdrawal of the fraud and corruption charges against
Mdluli. (My emphasis as it would appear later in this judgment).
[14]
In terms of the legislative power to make or determine prosecution
policies and to issue policy directives, the National Director
of
Public Prosecutions issued code of conduct inter alia, dealing with
professional conduct, independence and impartiality by each
member of
the prosecuting authority in the exercise of their powers, duties and
functions.
[15]
Because of its relevance to the "fit and proper" person
requirement, I find it necessary at the risk of prolonging
this
judgment, to repeat some of the directives contained in the code of
conduct:
"Prosecutors
must-
(a)
Be individuals of integrity whose conduct is
objective, honest and sincere
(b)
Respect, protect and uphold justice, human
dignity and fundamental rights as entrenched in the Constitution.
(c)
Protect the public interest;
(d)
Strive to be and seen to be consistent,
independent and impartial;
(e)
Conduct themselves professionally, with
courtesy and respect to all, and in accordance with the law and the
recognized standards
and ethics of their profession;
(f)
…
(g)
At all times maintain the honour and dignity
of their profession ...'
Independence
"The
prosecutorial discretion to institute and to stop criminal
proceedings should be exercised independently, in accordance
with the
prosecution policy and the policing directive and be free from
political, public or judicial interference."
Impartiality
"The prosecutor
should perform their duties without fear, favour or prejudice. In
particular they should-
(a)
Carry out their functions impartially and not
become personally involved in any matter;
(b)
Avoid taking decisions or involving themselves
in matter where
a
conflict
of interest existent or might possibly exist;
(c)
Take into consideration the public interest as
instinct from media or part as an interest and concerns, however
vociferously these
may be presented;
(d)
Avoid participation in political or other
activities which may prejudice or be perceived to prejudice their
independence or impartiality;
(e)
Not seek or receive gifts, donations, favour
or sponsorships that may comprise or may be perceived to compromise
or may be perceived
to compromise their professional integrity;
(f)
Act with objectivity and pay due attention to
the constitutional right to equality;
(g)
Take into account all relevant circumstances
and ensure that the reasonable inquiries are made about evidence
irrespective of whether
these inquiries are to the advantage or
disadvantage of the alleged offender;
(h)
Be sensitive to the needs of victims and do
justice between the victim, the accused and the community according
to the law and the
dictates of fairness and equity ; and
(i)
Assist the Court to arrive at
a
just verdict and in the event of conviction,
an appropriate
sentence
based on the evidence presented."
[16]
Three points summarised hereto were raised as preliminary issues.
First, alleged failure to afford Jiba a fair hearing, second,
that
the application and relief sought offend against separation of powers
and lastly that the present application is pre-mature.
Counsel for
Jiba was asked at the start of the hearing of this application as to
whether he was persisting with the three issues.
The response was
that preliminary issues are not abandoned.
Alleged
lack of affording Jiba proper hearing and separation of powers
[17]
The preliminary issues are introduced in the Jiba answering affidavit
as follows:
"13. Before
dealing with my response to the a/legations against me, set out in
the founding affidavit, I wish to raise the
following as points in
limine. First, the appropriateness of bringing an application such
as
this against the National Director of Public
Prosecutions in the office of the NPA. This raised an important
constitutional issue
involving the interpretation of the NPA Act and
the inter-relationship between section
7
of
the
Admission of Advocates Act. Secondly
, the issue of bringing this
application, where there is no urgency and none has been alleged in
the founding affidavit, without
affording me the opportunity to be
heard by the applicant. Both issues are interlinked in the
circumstances of this matter"
[18]
In what I believe to be an elucidation of the statement above, Jiba
in paragraphs 18 and 19 of her answering affidavit in these

proceedings proceeds as follows:
"18. Thus, for
the court to make an order striking my name from the roll of
advocates, it has to make
a
finding
first that I
am
not
a
fit and proper person to continue to practice
as
an advocate.
Normally, with regard to practicing advocate at the bar an enquiry is
conducted by the applicant with regard to the
latter issue. The
affected party is normally afforded
a
right
of hearing. Oral evidence is led and witnesses cross­examined.
Only if is the applicant is satisfied through the fair
enquiry
process that the affected party is indeed not fit and proper, would
it bring an application to strike the name from the
roll of
advocates.
19. In this instance
applicant has opted to roll the two processes into one through
a
motion application, based on an affidavit
which replete with hearsay and
innuendo,
which is prejudicial to me,
without having afforded the opportunity
to be heard
. I wish to state that much
of the prejudice hearsay and innuendo would have been eliminated if
applicant had followed the normal
process at least of conducting an
investigation
and
first granting me
a
hearing
to determine the truthfulness of the a/legations that
are being made against me and if indeed I
am
not
a
fit
and proper person to practice
as
an
advocate."
[19]
To put the gist of Jiba's criticism in perspective, it is necessary
to refer to sections 12 and 7 of the National Prosecuting
Authority
Act and
Admission of Advocates Act respectively
. Her criticism is
further articulated as follows in paragraph 28 of her answering
affidavit in these proceedings:
"An order by this
Honourable Court that my name be struck off the roll of advocates
would with respect, undermine the process
for the removal from office
of
a
Deputy National
Director
provided for
by the NPA Act by essentially disqualifying me from holding the
position of Deputy National Director and rendering
the enquiry moot.
This is in circumstances where the question of whether I
am
fit and proper person to hold the office would
already have been determined on the basis of affidavits and, in this
case, hearsay
evidence.
This, with
respect would infringe the doctrine of separation of powers and my
right to
a
fair
hearing.
"
[20]
Section 12 of the Act deal with the term of office of National
Director and deputy National directors of Public Prosecutions
and
subsections 5, 6 and 7 of section 12 deal with the removal or
suspension thereof. Because of their importance, subsections
are
repeated hereunder:
"(5) The National
Director or
a
Deputy
National Director shall not be suspended or removed from office
except in accordance with the provisions of subsections (6),
(7) and
(8).
(6) (a) The President
may
provisionally
suspend the National Director or
a
Deputy
National
Director from his or
her office, pending such enquiry into his or her fitness to hold such
office
as
the
President deems fit and, subject to the provisions of this
subsection, may thereupon remove him or her from office-
(i) for misconduct;
(ii) on account of
continued ill-health;
(iv) on account of
incapacity to carry out his or her duties of office efficiently; or
(v)
on account thereof that he or she is no longer
a
fit and proper person to hold the office
concerned.
(b) The removal of the
National Director or
a
Deputy
National Director, the reason therefor and the representations of the
National Director or Deputy National Director (if any)
shall be
communicated by message to Parliament within 14 days after such
removal if Parliament is then in session or, if Parliament
is not
then in session, within 14 days after the commencement of its next
ensuing session.
(c) Parliament shall,
within 30 days after the message referred to in paragraph
(b) has been tabled in Parliament, or
as
soon thereafter
as
is
reasonably possible, pass
a
resolution
as
to whether or not
the restoration to his or her office of the National Director or
Deputy National Director
so
removed,
is recommended.
(d) The President
shall restore the National Director or Deputy National Director
to his or her office if Parliament so resolves.
(e) The National
Director or
a
Deputy
National Director provisionally suspended
from office shall receive, for the duration of
such suspension, no salary or such salary
as
may
be determined by the President.
(7) The President
shall also remove the National Director or
a
Deputy National Director from office if an
address from each of the respective Houses of Parliament in the same
session praying
for such removal on any of the grounds referred to in
subsection (6) (a)
, is
presented
to the President."
[21]
There is a distinct difference between removal or suspension under
section 12 of the Act and removal or suspension under Admission
of
Advocates Act. Subsection (2) of section 7 of the latter Act was
quoted earlier in paragraph 5 of this judgment. Subsection
(1)
provides as follows:
"(1) Subject to
the provisions of any other law,
a
court
of any division may, upon application, suspend any person from
practice
as
an
advocate or order that the name of any person be struck off the roll
of advocates
-
(a) in the case of
a
person who
was
admitted to practise from the roll as an
advocate in terms of sub-section (1) of section three or is deemed to
have been
so
admitted
-
(i)
if he has ceased to be
a
South
African citizen; or
(ii)
in the case of a person who is not
a
South
African citizen, other than
a
person
contemplated in sub-paragraph
(iii) if he has failed
to obtain
a
certificate
of naturalization in terms of the South African Citizenship Act, 1949
(Act No. 44 of 1949), within
a
period
of six years from the date upon which before or after the
commencement of this sub-paragraph he was
admitted to the Republic for permanent residence therein or within
such further period
as the court either before or after the
expiration of the said period for good cause may allow; or
(Section 7(1)(a)(ii)
substituted by section 2(a) of Act 60 of 1984)
(iii)
(b) …
(c) in the case of
a
person who was admitted to practise as an
advocate in terms of section jive, if it appears to the court that he
has ceased to reside
or to practise as an advocate in the designated
country or territory in which he resided and practised at the time of
his admission
to practise as an advocate of the Supreme Court or that
that country or territory has ceased to be
a
designated country or territory for the
purposes of the said section; or
(d) if the court is
satisfied that he is not
a
fit
and proper person to continue to practise as an advocate; or
(e) on his own
application."
[22]
The process under section 12 of the Act and
section 7
of the
Admission of Advocates Act, whilst
overlapping, the distinction is
sharp. In terms of the Act, the National Director or deputy National
Director may be removed or
suspended as such. That would not
necessarily mean that such a person is automatically removed from the
roll of advocates. For
any such removal from the roll of advocates
one has to follow the process envisaged in section 7 of the Admission
of Advocates.
However, the National Director or deputy National
Director who is removed from the roll of advocates cannot continue to
be a National
Director or deputy National Director of Public
Prosecutions because of the provisions of section (9) of the Act
which provides:
"9. (1) Any
person to be appointed as National Director, Deputy National Director
must-
(a) possess legal
qualifications
that would entitle him or her to practice in all
courts in the Republic : and
(b)
be fit and
proper person. with the regard to his or her experience,
conscientiousness and integrity, to be entrusted with the
responsibility
of the office concerned.
[23]
So, if you cease to be a fit and proper person under section 7 of
Admission of Advocates, and you are removed from a roll of
advocates,
you cannot be entitled to practice in all courts in the Republic as
contemplated in paragraph (a) of section 9 (1) of
the Act. These
processes can sometimes run parallel to each other but any choice of
the two would not render the process unfair.
[24]
The premature and or separation of powers contention should therefore
be seen in the context of the above legislative framework
and there
can be no merit to the contention. Any suggestion that the
proceedings should have been preceded by an inquiry instituted
by the
President as contemplated in the Act, should also be seen in context.
It is worrying that Jiba or her counsel still found
it necessary to
persist with the argument despite the fact that the President had
already put it on record in the matter between
Democratic Alliance
(DA) and Jiba instituted and recently finalised in the Cape High
Court. In that case DA wanted court to suspend
Jiba, but the
President stated inter alia, as follows in a letter dated 1 September
2015 written on his behalf:
"...The President
was subsequently been apprised of the matter by the Minister and has
asked me to draw your attention to the
following:
•
That he is of
the view that none of the jurisprudential grounds exists which
warrant the suspension of advocate Jiba;
•
That the
process initiated by General Council of the Bar of South Africa ("the
GCB”) will result in
a
definitive
outcome expressed in
a
court
judgment ruling, as opposed to the hosting of an inquiry which will
culminate in
a
recommendation
to the President which will then require further processes to be
implemented before
a
definitive
decision;
•
That the GCB in
its wisdom has not sought suspension of Advocate Jiba in its
application, pending the final determination of the
matter, whilst
this approach is not resolutive on the question of suspension,
it
indeed gives
a
particular
insight from
a
professional
body charged with the duty of upholding the conduct of Advocates in
general;
The President is
equally of the view that the judgment of the Supreme Court of Appeal
are replete with instances where the Court
has expressed its approval
with the nature of the proceedings
as
well
as
the test to be
applied in examining the conduct of legal professionals. It must
follow that the investigative acumen and process
of the GCB, matched
with the judicial process provides
a
better
guarantee for ensuring the constitutional safeguards of all
concerned.
In the circumstances,
whilst the President remains concerned by the seriousness of the
allegations, he cannot accede to your request,
at this time. Lastly
the President as Head of
the
Executive has always resisted the invitation
to
comment on decisions taken by the NOP where there are either
unhelpful or unwise ...
[13]
”
[25]
This must have sent a clear message to Jiba, who must have been aware
of the President's response as quoted above long before
the judgment
was handed down on 23 May 2013 by Dolamo J. That being so,
persistence with the premature and or separation of power
point, in
my view, displays unwillingness on the part of Jiba to concede to
anything. She is fully aware that the President had
pleaded in the
Cape High Court that the matter in that court was premature in the
light of the present proceedings. Despite this,
she too wanted to
suggest that the present proceedings are pre-mature for not allowing
inquiry to take place as envisaged in section
12 of the Act or GCB
for not instituting a disciplinary inquiry before approaching the
court directly for removal or suspension
contemplated in
section 7
of
the
Admission of Advocates Act. Persistence
in this regard seems to
be consistent with Jiba conduct in the handling of cases where she is
involved as it would appear later
in this judgment.
[26]
Coming back to GCB's alleged failure to afford Jiba a fair hearing,
it is important to mention that motion proceedings differ
from action
proceedings or disciplinary proceedings where oral evidence is heard
and the opportunity to cross-examine witnesses
afforded. With motion
proceedings, which are often referred to as application proceedings,
evidence is placed before the court
in the form of affidavits sworn
to by witnesses. The proceedings are commenced by way of a notice of
motion accompanied by a founding
affidavit setting out facts on which
a claim is based, with all the supporting documentation being annexed
to the affidavits. Motion
proceedings are appropriate when the issue
or issues to be resolved is purely a dispute of law and there is no
material dispute
of fact. One cannot proceed by way of motion
proceedings where there is a material dispute of fact. In essence
therefore, a party
who is sued by way of motion proceedings can only
complain if there are material issues which cannot be resolved on
affidavits.
When that happens, the court is better placed to decide
whether there is real dispute of fact that cannot be resolved on
affidavits.
In the event of a dispute of fact that cannot be resolved
on papers, the court may either dismiss the application; refer
specific
issues for oral evidence or for trial. The risk is on the
party who elected to proceed by way of motion proceedings. In my
view,
neither of this finds application in the present case.
[27]
It is not Jiba's case that there is a dispute of fact. The closest to
this is that GCB's case is based on hearsay evidence.
There is no
merit to this. In any event, even if there was, this court is better
placed to decide on which evidence to give a probative
value.
[28]
I am actually unable to understand Jiba's contention of the alleged
failure by GCB to afford her proper hearing. For example,
in
paragraph 12 of her answering affidavit to these proceedings, she
states:
"12 I
am
advised that applications of this nature are
sui genesis and that I
am
required
to assist the court in ascertaining the truth. I intend to do
so..."
Having
said this, Jiba then indicated that in order to properly place her
defence before this court, she will at all times refer
to various
documents, which she had been able to access through her position as
a Deputy National Director, stating that she is
fully aware that the
grounds upon which GCB relies for the relief sought, arise out of her
conduct in her capacity as Acting National
Director of Public
Prosecutions.
[29]
Clearly, Jiba cannot rely on failure to be afforded a proper hearing
simply because an inquiry was not followed where oral
evidence could
be led and cross examination allowed. She had everything at her
disposal to deal with the allegations against her
and no form of
prejudice can be claimed to have occurred. For this, the so called
points in limine
are destined to fail. Before I turn to deal
with the complaints raised in respect of each case mentioned in
paragraphs 8.2, 8.3
and 8.4 of this judgment, I hereunder give
reasons for the order refusing leave to file further answering
affidavits.
REASONS
FOR THE ORDER REFUSING FOURTH AFFIDAVIT
[30]
On 18 August 2015 GCB filed a replying affidavit in these
proceedings. Subsequent thereto on 15 September 2015 Jiba filed the

fourth affidavit referred to as a supplementary answering affidavit.
It is this affidavit which formed the subject of the leave
to file
additional affidavit. For two reasons, the fourth affidavit was filed
and Jiba states the reasons as follows:
"4.
..
.First,
in order to supplement any response to the founding affidavit of Adv.
Idris Jeremy Muller
SC
("ADV
Muller”) deposed to on behalf of the General Council of the Bar
("the GCB”)
the
applicant in these proceedings, in the light of certain information
which has come to hand subsequent to the filing of my answering

affidavit. Secondly, in support of the notice of application to which
this affidavit is attached, for leave to file supplementary
answering
affidavit.
"
[31]
Effectively, the suggestion is that new information came to light
post the filing of the answering and replying affidavits

respectively. It is in the interest of the administration of justice
that well known and well established general rules regarding
the
number of sets of proper sequence of affidavits in motion proceedings
be ordinarily observed. That is not to say that these
general rules
must always be lightly applied. Some form of flexibility controlled
by the presiding judge exercising his discretion
in relation to the
facts of the case before him, must also necessarily be permitted.
Where an affidavit is tendered in motion proceedings
both late and
out of its ordinary sequence, the party tendering it is seeking not a
right, but an indulgence from the court. He
or she must both advance
his explanation for why the affidavit it is out of time and satisfy
the court that, although the affidavit
is late, it should, having
regard to all the instances of the case, nevertheless be received.
Attempted definition of the ambit
of discretion is neither not
desirable... It is sufficient for the purposes - to say that on any
approach to the problem, he inadequately
or otherwise of the
explanation for the late tendering of the affidavit will always be an
important factor of enquiry
[14]
.
[32]
The rule of practice that an applicant must generally speaking, stand
or fall by his founding papers, is not one cast in stone
but has been
bent from time to time,
because of the existence of a judicial
discretion which permits the filing of further affidavits
so as
to give effect to a solitary practice and fundamental consideration
in the administration of justice, that a matter
should be
adjudicated upon all the facts relevant to the issues in dispute
.
Despite the cogency of this rule of practice, it has been frequently
stated that it does not operate to preclude the introduction
of
further affidavit when consideration of fairness and justice to both
parties dictate that this should be done. The rule remains
subject to
the discretionary power of the court and mere fact that the matter
sought to be
introduced
in the new affidavits should properly have been included in the
founding affidavit and not in reply, does not negative
the existence
of that discretionary power
[15]
.
[33]
The principle enunciated in the preceding case law, should apply to a
respondent who wishes to file further affidavit in response
to
replying affidavit or new information discovered thereafter. Most
importantly, all facts sought to be introduced should be relevant
to
the issue in dispute. In the present case, relevant facts must speak
to the issue whether the first respondent (Jiba) or any
of the
respondents for that matter, is fit and proper to remain on a roll of
advocates. Bearing this in mind, it is important to
have regard to
the facts which Jiba wanted to introduce in the fourth affidavit.
New
information
[34]
What Jiba refers to as "new information", is a letter dated
23 July 2013, marked as Annexure NJIA to her "supplementary

affidavit". The essence of the letter is articulated by Jiba as
follows:
"25.
As appears
from the correspondence it concerns all alleged agreement by NPA to
pay through the office of the State Attorney,
75%
of the
applicant's attorney and client cost of instituting and prosecuting
this application. There are also several demands from
the applicant's
attorneys of record to Mr Matubatuba in the office of the State
Attorney to settle the accounts of counsel who
are acting on behalf
of the GCB in this application.
26. As
a
matter of professional courtesy to the
individual counsel involved, the amounts of these accounts referred
to in the letter from
the applicant's attorney of record dated 30
June 2015, have been blocked out. I also do not attach the copies of
these accounts
but they can be made available to this Honourable
court if necessary.
Suffice
to state the amounts involved are substantial.
27 The content of this
correspondence is extremely concerning and I respectfully submit,
makes it clear that this application forms
part of
a
direct attempt by certain members in the NPA
to remove
me
for political reasons
..."
[35]
The removal from a roll of advocates "for political reasons"
appears to be Jiba's theme in introducing the letter
in question.
This appears from the preceding paragraphs of her affidavit in which
she states inter alia:
"7.
Adv. Muller
was at pains in the founding affidavit expressly to state that
notwithstanding the applicant is aware of reports of
disputes
and
political manoeuvring between different factions within and outside
the NPA
that this application for the striking off my name
from the roll of advocates, is not part of any campaign to remove me
from the
NPA. I refer the court to paragraph
7.7
of the
founding."
[36]
'Political manoeuvring' in the quotation above appears to be borrowed
words from paragraph 7.8 of the founding affidavit wherein
GCB
states:
" 7.8 The GCB is
also alive to a/legations which have been reported in the media to
the effect that some or all of these developments
are
a
manifestation of
political
manoeuvring
by factions or individuals
within and outside of the NPA. Beyond what has been reported in the
media, the GCB has no knowledge
of these a/legations or
their veracity."
[37]
So, right at the onset, GCB made it known that it was aware of the
allegations of in-fighting within the National Prosecuting
Authority
and GCB continues in its founding papers by clarifying its position
as follows:
"7.9
I mention these matters, because this application may be
characterised by some as another facet of the developments which
appear
to be taking place both within and outside the NPA. It is not,
and it should not be viewed
as,
any such thing. As indicated,
the application was indeed prompted by a request from the NPA. Having
considered the NPA's request
then GCB formed the view that, on the
evidence available to it, the respondents' conduct obliged it to act
in terms of section
7
(2) of the
Admission of Advocates Act
and
bring these facts to this court's attention, so that the court
could consider whether one or more of the respondents is a fit and

proper person to continue to practice as an advocate as contemplated
in section
7
(1) (d) of the Act. It is for this reason that
the GCB resolved to prepare this application."
[38]
What is referred to as "new information" should have been
viewed in this context by Jiba. Properly considered, there
was never
a need to seek to introduce the letter of 25 July 2015. It was common
cause or put differently, it was not in dispute
that there was
in-fighting within the NPA. The agreement to pay 75 % of GCB's
attorney and client costs in instituting and prosecuting
the
application has no material relevance to the question whether the
complaints forming the subject of the application are established
and
if so, whether the complaints are of such a nature that they make any
of the respondents unfit persons to continue to practice
or remain on
a roll of advocates.
[39]
The statement
'this correspondence and the alleged agreement
between the NPA and the GCB and or its attorneys of record, further
confirm my suspicions
that this forms part of
a
political
agenda to remove me from the NPA. I submit that
this new
information
is highly material for the placing of this
application by GCB in its proper context” ,
is irrelevant
to the factual findings this court has been called upon to pronounce
on. The question in the present proceedings is
whether any of the
complaints made against the respondents, if proved, would make any
one of them to cease to be fit and proper
persons to remain on a roll
of advocates. It is on the basis of this that leave to file further
answering affidavit was refused.
[40]
However, one could not turn a blind eye on the fact that public funds
might have been improperly utilized by paying 75% of
GCB's legal
costs for having instituted the present proceedings as if it was
doing the national prosecuting authority a favour.
GCB instituted the
present proceedings as is entitled to do so in terms of
section 7
of
the
Admission of Advocates Act. Counsel
for GCB was quizzed as to why
the agreement and expenditure thereof if any should not be referred
to the Audit-General to investigate
possible contraventions of
Departmental Financial Instruction (DFI) and the provisions of Public
Finance Management Act. To this
enquiry, the court was assured by
Adv. Burger SC on behalf GCB that no cent of public funds was spent
or is intended to be spent
or recouped by GCB for having instituted
the present proceedings based on the alleged agreement with the NPA.
Consequently, the
intended referral to the Audit-General will not be
made. I now turn to deal with the complaints raised as the basis for
the present
proceedings.
BOOYSEN
CASE AND COMPLAINTS AGAINST JIBA IN CONNECTION THERETO
[41]
'...Court should discourage preliminary litigation that appears to
have no purpose other than to circumvent the application
of section
35(5) of the Constitution. Allowing such litigation will often place
prosecutor between a rock and a hard place. They
must, on the one
hand, resist preliminary challenges to investigations and to the
institution of proceedings against accused persons;
on the other
hand, they are simultaneously obliged to ensure that prompt
commencement of trials. Generally disallowing such litigation
would
ensure that the trial court deciding the pertinent issues is best
placed to do, and would ensure that trials start sooner
rather than
later. There can be no absolute rule in this regard; however. The
courts' doors should never be completely closed to
litigants... But
in ordinary course of events, and where the purpose of the litigation
appears merely to be avoidance of the application
of section 35(5) or
the delay of criminal proceedings, all courts should not entertain
it. The trial court would then step in and
consider together the
pertinent interest of all concerned. If that approach is generally
followed the state would be sufficiently
constrained from acting
unlawfully by the application of section 35(5) and by the possibility
of civil and criminal liability'.
[16]
[42]
The office of the National Director of Public Prosecutions is closely
related to the functions of the judiciary broadly to
achieve justice
and is located at the core of delivering criminal justice.
[17]
Courts are not
overly eager to limit or interfere with the legitimate exercise of
prosecuting authority. However, a prosecuting
authority's discretion
is not immune from the scrutiny of a court which can intervene where
such discretion is improperly exercised.
[18]
[43]
Courts
have on rare occasions expressed their disapproval of the fact that a
prosecution was instituted
.
[19]
Courts do not
interfere with the prosecuting authority's bona fide exercise of its
discretion because prosecuting authority has
the power to decide to
prosecute and, once the accused is on trial, he or she will have the
fullest opportunity to put his defence
to the court, cross-examine
prosecution witnesses and to reply on his right not to be convicted
unless the prosecution can prove
his guilt beyond reasonable based on
admissible evidence and prevented in terms of a regular
procedure.
[20]
Courts can
intervene where mala fide is alleged or where it is alleged that the
prosecuting authority never applied its mind to
the matter or acted
from ulterior motive
[21]
. (My
emphasis).
[44]
The complaints against Jiba, in her capacity as the then Acting
National Director of Public Prosecutions in Booysen case, arose
from
the exercise of her statutory power to authorise the charging of
Major-General Booysen (Booysen) with contravention of section
2(1)
(e) and (f) of the Prevention of Organised Crimes Act no.121 of 1998
("POCA"). A person shall only be charged with
committing an
offence contemplated in subsection (1) of section 2 POCA if
prosecution thereof is authorised in writing by the National

Director.
[22]
Any person who
whilst managing or employed by or associated with any enterprise,
conducts or participates in the conduct, directly
or indirectly, of
such enterprise's affairs through a pattern of racketeering activity,
manages the operation or activities of
an enterprise and who knows or
ought reasonably to have known that any person, whilst employed by or
associated with that enterprise,
conducts or participated in the
conduct, directly or indirectly, of such enterprise affairs through a
pattern of racketeering activities
shall be guilty of an offence.
[23]
[45]
On 18 August 2012 Jiba, Acting as a National Director of Public
Prosecutions, issued written authorisation to have Booysen
charged
with contraventions of section 2(1) (e) and {f) referred to in
paragraph 44 above. Booysen successfully challenged the
authorisation
in Kwa-Zulu Natal Division before Govern J. In his replying
affidavit, before Govern J, Booysen stated that Jiba
was:
"mendacious" when she asserts in paragraph 21 of the
answering affidavit that she considered the statements together with

the other information in the 'docket' before making the impugned
decisions.  She could not have considered the
statements
referred to in her answering affidavit. She is invited to explain how
she could have taken into account information on
oath that
objectively did not exist at the time of taking the decision".
[46]
What is quoted above is the gist of the complaint against Jiba in the
handling of Booysen case. In its founding papers, GCB
articulates the
conduct complained of as follows:
"On the evidence
of her conduct in the Booysen matter
as
(with
respect, correctly) described by Govern J in this judgment, Jiba
signally failed to comply with the NPA
's
Code of Conduct. More pertinent to this
application, the statements made by Jiba under oath is seeking
tojustify her decision to
issue the POCA authonsations,
were
evidently untruthful. As such her conduct indicates that she is not
a
fit and proper person to practice
as
an advocate
."
[47]
These averments seem to be based on the finding by Govern J which
inter alia, included:
"[30] This leaves
the four annexures to the answering affidavit mentioned above. These
are the only documents not contained
in the dockets. [Jiba] says that
they are all statements made under oath
. [Jiba] says in
addition that they implicate Mr Booysen in one or more of the
offences in question" .
[48]
Then in paragraphs 31 and 34 of his judgment, Govern J made adverse
remarks against Jiba as follows:
"[31] The
submissions of Mr Booysen in his replying affidavit can be summarised
as
follows: two of the
annexures are sworn statements made under the name of one Colonel
Aiyer. They are annexures NJ2 and NJ4
respectively. Mr Booysen described these statements which concern
'office politics and submit
that they in no way implicate him in any
of the offences with which he has been charged. The second of these
in addition to not
implicating him in any of the offences in
question, was deposed to on 31 August 2012, some two weeks after the
first impugned
decision
was taken. The documents referred to
as a
statement by
Mr
Danikas. annexure NJ3 is not
a
sworn
statement
. It is not even signed by
anyone. It is not dated. Even if it could be attributed to the named
person and even if it
was
sworn
statement as claimed by the NDPP, the contents
do not cover the period clearly in the indictment except for one
event which does
not relate to Mr Booysen ...
[34] Mr Booyen was
clearly within his rights to deal with in reply with the inaccurate
assertions by the NDPP in her answering affidavit
and to issue
the
challenge and invitation in question
.
He had not seen the statements until they were annexed to the
answering affidavit.
As regards the
inaccuracies. the NDPP is after all an officer of the cour
t.
she must be taken to know how important it is to ensure that her
affidavit is entirely accurate.
If is
shown to be inaccurate and thus misleading to the court. she must
also know that it is important to explain and if appropriate
correct
any
inaccuracies
.
Despite this, the invitation of Mr Booysen was not taken by the NDPP
by way of
a
request or
application to deliver further affidavit. In response to Mr Booysen's
assertion mendacity on her part, there is deafening
silence. In such
circumstances the court is entitled to draw an
inference adverse to· the NDPP. The inference in this case
need go no further
than that, on her own version, the
NDPP
did
not
have before her annexures 4 at the time. In addition it is clear that
annexure NJ3 is not
a
sworn
statement. Most significantly the inference must be drawn that none
of the information on which she says she relied linked
Mr Booysen to
the offence in question
..."
[49]
Before dealing with information placed before Jiba for written
authorisation in terms of section 2(1) of POCA, it is important
to
reflect whether the invitation by Booysen and the adverse remarks by
Govern J were based on correct evaluation and understanding
of Jiba's
answering affidavit. The challenge or invitation by Booysen to Jiba,
was contained in the replying affidavit and at the
risk of prolonging
this judgment, I repeat the contents thereof in part:
"...She
is invited to explain how she could have taken into
account information on oath that objectively did not exist at the
time of taking
the decision."
[50]
The invitation was made after having made allegations of 'mendacity'
in the same paragraph with reference to paragraph 21 of
Jiba's
answering affidavit in Booyesen matter and because of the relevance
thereto, paragraphs 16.6, 16.7 and 17 of Jiba's answering
affidavit
in that case are repeated hereunder:
"16.6
The
information under oath
which was
placed before
me
also
indicated that the applicant knew or ought to have known that his
subordinates were killing suspects as aforesaid instead of
arresting
them.
16.7 The information
further revealed that unlawful activities of killing suspects and\or
civilians were, in certain instances motivated
by the Applicant's and
members of his Unit's desire to enrich themselves by means of State
monetary award and\or
certificates for
excellent performance. In this regard, I annex
a
copy of an example of such
a
monetary award claim document as "NJ1"
in which inter alia, the Applicant is recommended for such an award
resulting from
the death of suspects.
17. Particular
reference is made
in this regard to the statement made by
Colonel Rajendran Sanjeevi, Mr Aris Danikas and Mr Ndlondlo from
which it is apparent that the applicant is well aware of the
information that the Respondents have in their possession relating to
the murder of at least 28 people and the monetary and non­

monetary awards claimed by him (the Applicant) for the instrumental
part that he played in these crimes. Additionally, Mr Danikas
has
revealed some of the information that he has provided to the
Respondents and to the press and even posted video footage thereof
on
You-Tube. I annex copies of these statements as NJ2, NJ3, NJ4 and
NJS, respectively."
[51]
Having regard to what is quoted above, it does not seem the
statement:
"Jiba says that they are all statements made under
oath",
is correct. Nowhere in Jiba's answering affidavit did
she make such a statement, neither did she say any of annexures, NJ2,
NJ3,
NJ4, and NJ5 were under oath. 'Under oath' statements or
information were made only in paragraphs 16 and 16.6 of the answering
affidavit without suggesting that all of the annexures referred to in
paragraph 17 of the answering affidavit in Booysen matter
were made
under oath. Therefore the statement:
' The documents referred to
as a statement by Mr Danikas, annexure NJ3, is not
a
sworn
statement',
as stated in paragraph 31 of Govern J's judgment, has
to be seen in context insofar as it was understood that Jiba averred
that
NJ3 was a sworn statement. The truth is, she never said NJ3 was
a sworn statement and it could not reasonably have been so inferred

particularly reading in the context of paragraph 16.7 of her
answering affidavit in Booysen case quoted in paragraph 50 above.
[52]
The fact that Jiba did not avail herself to the invitation to deal
with the allegation of being "mendacious", meaning
"not
telling the truth", should also be seen in context. The
allegation was made in the replying affidavit. This too,
Govern J was
mindful of. For the purpose of these proceedings, the criticism by
Govern J should be seen in the context of what
Jiba now has to say in
these proceedings.
[53]
When it was discovered that Booysen has raised certain issues in his
replying affidavit, the prosecution team felt that it
needed to
respond thereto. On 14 August 2013 a meeting of the prosecution team
was held. Subsequent to the meeting, a memorandum
was prepared and
forwarded to the defence team led by Hodes SC, in terms of which it
was expected that supplementary affidavit
would be filed to explain
the criticism against Jiba with regards to the annexures. On 19
August 2013 an email by Adv Mosing of
NPA was sent to Adv Chauke
Director of Public Prosecutions Johannesburg, enquiring what progress
had been made with regard to filing
of further affidavit to deal with
Booysen's allegations. Subsequently, Jiba was advised by Adv. Mosing
that counsel had indicated
that no further actions were necessary.
[54]
Based on the explanation above, it is clear that Jiba did not ignore
the serious allegations of "mendacious" made
by Booysen. By
seeking to file further affidavit to explain the annexures after the
replying affidavit was filed, is a clear indication
that she was
mindful of the need 'to explain and correct any inaccuracies' created
by Booysen in his replying affidavit. Therefore
the statement:
'Despite this, the invitation by Mr Booysen
was
not taken
up by the NDPP by way of
a
request or application to deliver
a
further affidavit, in response to Mr Booysen
's
ascertain
of mendacity on her part, there is
a
deafening silence' ,
made
by Govern J in paragraph 34 of his judgment ought to be seen in the
context of what is explained in paragraph 53 above.
[55]
Similarly, the statement that 'as
regards the inaccuracies, the
NDPP referring to Jiba), is after all an officer of the court, she
must be taken to know how important
it is to ensure that her
affidavit is entirely accurate ...',
should be seen in the
context of what is stated in paragraph 53, but even most importantly,
in the context of her explanation now
offered in the present
proceedings.
[56]
On 17 August 2012 Jiba approved the application for authorisation in
terms of section 2(4) of POCA for contravention by Booysen
of section
2(1)(e) and (f) of POCA. The provisions of section 2(1) (e) and (f)
were referred to in paragraph 44 of this judgment.
The information
and advice that was placed before Jiba for the purpose of granting or
refusing authorisation was prepared and compiled
by Adv. Raymond K
Mthenjwa and Adv. Gladstone Sella Maema, both deputy directors of
public prosecutions, Adv Anthony Mosing, a
senior deputy director of
public prosecutions and the head of the special Projects Division,
who acted as the liaison between Jiba
and the prosecuting team.
[57]
At the time Jiba deposed to the answering affidavit in Booysen's
matter, the facts and the evidence against Booysen had been
presented
to her on many occasions and she was acquainted with the case against
Booysen. In her affidavit during proceedings before
Govern J she
referred to annexure NJ5, being the statement of Mr Ndlodlo and
Annexure 6 being the statement of Booysen. These annexures
apparently
did not form part of the papers before Govern J and Jiba was not
aware why that was not done. I revert to the essence
of annexures NJ5
and NJ6 later when dealing with whether Jiba had information
implicating Booysen when she issued the authorisation
on 17 August
2012. NJ3 was the statement of Ari Danikas, which was obtained round
about 18 April 2012 by General Mabula who led
the Hawks investigation
team against Booysen.. The drafted statement of Danikas was handed
over to the prosecution team during
June 2012 and formed part of the
information she considered in authorising the prosecution of Booysen.
Danikas was a police reservist
in the Durban Organised Crime Unit
based in Carta Manor and was at that time in Greece. He had security
concerns and was unwilling
to come on his own to South Africa. On or
before 11 July 2012 Adv Maema asked General Mabula to leave the
statement unsigned so
that the information process outlined in the
mutual legal assistance legislation, that is, sections 2 and 3 of
International Cooperation
in Criminal Matters Act 75 of 1996 be
followed to formalise the statement, although the witness was willing
to have it signed at
the South African embassy. The prosecution was
confident that the statement would ultimately be signed through the
process outlined
as contemplated in Act 75 of 1996, but it formed the
basis of the briefings to be considered by her in issuing the
authorisation.
However,the process of signing the statement could not
be finalised since the incumbent (Mr Mxolise Ntasana) at the time of
deposing
to the answering affidavit in the present proceedings, had
instructed to halt the process.
[58]
Whilst the statement in question did not relate to the specific
incident covered in the indictment, it was however intended
to
corroborate the evidence in possession of the prosecution team that
Booysen was involved in the various activities giving rise
to the
charges against him of similar facts evidence which is admissible in
racketeering prosecutions.
[59]
An explanation stated above is offered in these proceedings to set
the record straight. Therefore the statement,
'the document
referred to
as
a statement by Mr Danikas annexure NJ3 ... is
not even signed by anyone. It is not dated. Even if it can be
attributed to the named
person and even if it was sworn statement
as
claimed by the NDPP the contents do not cover the period dealt
with in the indictment except for one event which does not relate
to
Mr Booysen',
as stated by Govern J ought to be seen in the
context of the explanation given by Jiba in these proceedings and the
fact that Jiba
never said annexure NJ3 was a sworn statement as
stated earlier in this judgment. I need to caution. I should not be
understood
as seeking to review or upset Govern J's judgment. At the
time, he did not have Jiba's responses as this court now has.
[60]
Regarding the question how Jiba could have taken into account
information on oath that objectively did not exist at the time
the
authorisation was made, the explanation by Jiba in these proceedings
is as follows:
"217. There were
also two statements by Colonel Aiger (reference to
as
Annexure NJ2 and
NJ4).
One was taken on 3 August 2012 setting out Booysen's managerial
responsibilities, participation and interferences in the activities

of
a
section of Durban
&
Organised Crime Unit. The statement was
obtained before 17 August 2012, being
the
date on which the authorities were granted by me. A second statement
of Colonel Aiger was taken on 31 August 2012 following
a
consultation with the prosecution team during
early July 2012. However the content of the statement was information
already relayed to the prosecution team by
Colonel Aiger at the consultation."
[61]
Therefore the statement:
' The second of these in addition to not
implicating him in any of the offences in question, was deposed to on
31 April 2012, some
two weeks after the first impugned decision was
taken',
in paragraph 31 of Govern J's judgment, inasmuch as GCB
seeks to rely on it for the complaint levelled against Jiba, should
be considered
in the light of explanation quoted in paragraph 60
above. I am unable to find any conduct on the part of Jiba that
justifies an
application contemplated in
section 7
of the
Admission
of Advocates Act.
[62
]
As far as the allegation of lack of information implicating Booysen
is concerned, an understanding of the applicable legislature

framework, what was placed before Jiba and the core function of the
prosecuting authority is necessary. The court may hear evidence,

including evidence with regard to hearsay, similar facts or previous
convictions relating to offences contemplated in subsection
(2) of
section 2 of the Act notwithstanding that such evidence might
otherwise be inadmissible, provided that such evidence would
not
render a trial unfair
[24]
.
This should be seen in the context of the Preamble under POCA which
inter alia, reads:
"AND BEARING IN
MIND that
it is usually very difficult
to prove the direct involvement of organised crime leaders in
particular
case
.
because they do not perform the actual
criminal activities themselves,
it is
necessary to criminalise the management of and related conduct in
connection with enterprises which are involved in the pattern
of
racketeering activity.
AND WHEREBY THE SOUTH
AFRICAN
common law and statutory law
fail to deal effectively with organised crimes
...
criminal gang activities,
and
also fail to keep pace with international measures aimed at dealing
effectively with organised crime
...
and criminal gang activities.
AND WHEREAS
pervasive
presence of criminal gangs in many communities is harmful to
well-being of these communities
. it is necessary to criminalise
participation in or promotion of criminal activities.,,
[63]
In my view the provisions of section 2(1) (e) and (f) referred to in
paragraph 44 of this judgment are meant for the criminalisation
of
such activities. The point I am making is this: Courts for the
purpose of an exercise of its discretion in terms of section
2(2)
referred to in paragraph [62] of this judgment, may rely on hearsay
evidence, information and or documentation collected by
the police
and presented to it by the prosecution. If that is so, and courts are
entitled to have regard to hearsay evidence during
trial, so too
should the National Director of Public Prosecutions (Jiba in
Booysen's case) be entitled to rely on hearsay and similar
facts
evidence for the purpose of authorisation as contemplated in
subsection (4) of section 2 of POCA. Otherwise, pervasive presence
of
criminal gangs will continue to rule with impunity and fear in many
of our communities and resultantly pose harm to the well-being
of
many communities.
[64]
As I said, one needs to be careful not to be understood as upsetting
Govern J's judgment for having reviewed Jiba's decision
to prosecute
Booysen. That is not an issue before this court. The issue however is
whether in granting authorisation in terms of
section 2(4), Jiba was
mala fide or had ulterior motive, in which event, the requirements of
"fit and proper person"
to remain on a roll of
Advocates becomes relevant. For this purpose, further provisions of
POCA are necessary to consider, also
taking into account offences
under section 2(1) (e) and (f).
[65]
'Pattern of racketeering activity' means 'the planned, on-going,
continues or repeated participation or involvement in any
offence
referred to in Schedule 1 and included at least two offences referred
to in Schedule 1'. On the other hand, "enterprise"

'includes any individual partnership, corporation, association or
other juristic person or legal entity, and any union or group
of
individuals associated in fact'
[25]
.
[66]
The essence of the information before Jiba, can be summed up as
follows: In addition to what is stated in paragraphs 56, 57
and 60 of
this judgment, Booysen was the head of Carta Manor Organised Crime
Unit in the South African Police Services. Members
of the police in
his unit and under his command had allegedly committed crimes of
serious nature including murders against suspects
who were sometimes
framed in the commission of offences. Booysen knew, approved and or
ought to have known of the commission of
these offences. In reward to
the members' unlawful activities, Booysen motivated for incentive of
R10 000.00 for each of the 26
members of the Carto Manor Crime Unit
including Booysen himself. Booysen was also commended for outstanding
services rendered in
that he 'was part of a team, who through their
commitment and dedication, arrested several crime and dangerous
suspects for the
murder of a police officer'.
[67]
I cannot find any mala tides and or ulterior motive in the
authorisation by Jiba as contemplated in POCA. POCA is like a cry
out
loud for declaration of war against serious, continuous and organised
crimes. That needs specialised investigation and prosecution.
Most
importantly, POCA requires the freedom and space to be given to the
members of the prosecuting authority in the exercise of
their
legislative power to investigate through members of their
Investigating Directorate and under the watchful eye of a special

director so appointed to prosecute without fear, favour and prejudice
those implicated in the commission of serious crimes. Anything
short
of this, or anything which tends to impede on this constitutional and
legislative imperative, for example, hauling Jiba to
the proceedings
in terms of
Section 7
of the
Admission of Advocates Act, ought
to be
based on very cogent, serious and exceptional circumstances.
[68]
You do not want members of the prosecution authority to unduly watch
their backs for fear of being dismissed or removed from
the roll of
advocates every time when they make mistakes in prosecuting and
presenting cases in court, or every time when an application
for
authorisation is made in terms of
section 2(4)
of POCA. An overriding
factor for them for consideration should be to adhere to the rule of
law and the Constitution. It suffices
for now to conclude on Booysen
matter by stating that no case has been made for removal or
suspension from the roll of advocates.
I now turn to deal with the
other matter and basis of complaints thereto against Jiba.
SPY
TAPES CASE
[69]
The listening of telephone conversation recorded on tapes between
Bulelani Nqcuka, the then National Director of Public Prosecutions

and Mr McCarthy, the then Director of Public Persecutions for Durban
and withdrawal on 1 April 2009 of several of criminal charges
against
Mr Jacob Zuma, (currently the President of the Republic of South
Africa), became to be known in South Africa as a "Spy
tape
case." It was a case instituted by Democratic Alliance Party
against the National Prosecuting Authority in terms of which
the
latter's decision to withdraw several charges against Mr Zuma was
challenged. It is the handling of that case by Jiba in her
capacity
as the then Acting National Director of Public Prosecutions which
forms the basis of the application and dispute in these
proceedings.
The case in question is also referred to in these proceedings as a
"Spy tapes case."
[71]
On 6 April 2009, the then acting National Director of Public
Prosecutions, Adv. Mokotedi Mpshe, after having listened to the

conversation aforesaid recorded on tape publicly announced the
withdrawal of corruption and other several related charges against
Mr
Zuma.
[72]
During April 2009 and subsequent to the withdrawal of the charges,
the Democratic Alliance· (DA), a registered political
party
and official opposition in South African national parliament
instituted review proceedings in the North Gauteng High Court
for an
order reviewing, correcting and setting aside the decision to
discontinue the prosecution against Mr Zuma and declaring
the
decision to be inconsistent with the Constitution of the Republic of
South Africa. DA further required Mr Zuma and NPA to deliver
to the
registrar of the High Court, in terms of rule 53(1) of the Uniform
Rules, the record on which the impugned decision was
based, which
included representations made by Mr Zuma for the withdrawal of the
charges. The prosecuting authority, as the decision
maker refused to
deliver the record contending that the record contained the said
representations which had been made on confidential
and without
prejudice basis. It was further pointed out that Mr Zuma had declined
to waive the conditions under which he had submitted
his
representations. Lastly, it was contended that the decision by the
national prosecuting authority to discontinue a prosecution
was not
reviewable.
[73]
In terms of Rule 53 (1) of the Uniform Rules,
"...all
proceedings to bring under review the decision or proceedings of any
inferior court and of any tribunal, board or officer
performing
judicial, quasi-judicial or administrative functions, shall be by way
of notice of motion directed and delivered by
the party seeking to
review such decision or proceedings to the magistrate, presiding
officer or chairman of the court, tribunal
or board or to the
officer,
as
the case
may be, and to all other parties affected-
(a)
Calling upon such person to show cause why
such decision or proceedings should not be reviewed; and corrected or
set aside and
(b)
Calling upon the magistrate, presiding
officer, chairperson or officer,
as
the
case may be, to despatch within fifteen days after receipt of the
notice of motion to the registrar the record of such proceedings

sought to be corrected or set aside, together with such reasons
as
he or she is by law required or desires to
give or make, and to notify the applicant that he has done
so."
[74]
Jiba as acting National Director of Public Prosecutions at the time
or her predecessor failed to despatch the record of the
decision.
This led to an application to compel in the high court Pretoria
before Ranched J. DA failed in its application to compel.
However, on
20 March 2012 the SCA on appeal by DA, made an order of relevance, as
follows:
"1.3 In the Rule
6(11) application, the first respondent (referring to NDPP)
is
directed to produce and lodge with the
Registrar of this court the record of the decision.
Such
record shall exclude the written representations made on behalf of
the third respondent (referring to Mr Zuma) and any consequence

memorandum or report prepared in
response
thereto oral representations if the
production thereof would breach any confidentiality attaching to
representations (the reduced
record)
.
The record shall consist of the documents and materials relevance to
the review, including the documents when making the decision
and any
documents informing such decision. "(My emphasis).
[75]
The order was not complied with. Instead, on 12 April 2012 the state
attorney on behalf of NPA headed by Jiba at the time wrote
to DA's
attorneys two days after the expiry of the 14 days set by the SCA and
indicated that they were in the process of preparing
copies of the
reduced record as indicated in the order of the SCA, that a list of
documents was supplied, which it was alleged,
constituted the reduced
record and that the list was not in breach of the confidentiality.
Then in paragraphs 4 and 5 of the letter,
it was recorded:
"4. Other
material considered by the Acting NDPP at the time is subject to the
confidentiality obligation and therefore cannot be
discovered, unless it may transpire that Mr Zuma's team may at
a
later stage be willing to consent to
a
relaxation of the confidentiality in respect
of particular documents or particular contents, in which event
we will advise you accordingly.
5.
There are in
addition certain tape recordings which are in the process of being
transcribed, but that process has not been completed
as yet, and will
take some additional time. On completion thereof, we are obliged to
give an opportunity to Mr Zuma 's legal team
to consider whether
there is any objection to disclosure of such transcripts. On
completion of that process, if there is no objection
to disclosure,
they will be made available as
a
supplement to the record."
[76]
During May 2012 the State Attorney supplied certain documents to DA's
attorneys. On 9 May 2012 State Attorney then wrote again
to DA's
attorneys and informed them that Mr Zuma's legal representatives
required a period of two to three weeks to consider the
tape
transcripts, but that they were not consenting to the release thereof
pending further consultation with their client.
[77]
The delay in not fully complying with the order quoted in paragraph
74 above led to DA approaching this court for an order,
inter alia,
directing that the record be produced and lodged with the Registrar
of this court in terms of the SCA order which should
include a copy
of electronic recording and a transcript thereof as referred to by
the Acting NDPP in the announcement of his decision
of 6 April 2009,
internal memoranda, reports, minutes of meetings dealing with the
contents of the recording and or transcripts
itself, insofar as these
documents do not directly refer to written or oral representations.
In addition, the DA sought an order
that Jiba be held in contempt of
the order of the SCA referred to in paragraph 74 above.
[78]
The application was heard before Mathopo J who made an order in
favour of the DA except for the contempt of the court relief.
Mr Zuma
appealed to SCA against Mathopo J's order. The latter's order inter
alia, read:
"1. The First
Respondent is directed to comply with the order of the Supreme Court
of appeal in case no: 28812011 dated 20
March 2012 ("the
SCA
order”), within five days of the date of
this order.
2. The record to be
produced and lodged by the First Respondent with the Registrar of
this court, in terms of the
SCA
order,
shall include
a
copy
of the electronic recordings and
a
transcript
thereof referred to by the first respondent in the announcement of
the
first respondent's
decision of 6 April 2009
as
well
as any internal memorandum, reports or minutes of meetings dealing
with and or transcript itself, insofar as the
SCA
documents do not serve to breach the
confidentiality of the thereof of respondents' written or oral
representations."
[79]
On appeal to the SCA, its order of 20 March 2012 and that of Mathopo
J were varied by additions as follows:
"1. …
2. …
3. With regard to
memoranda, minutes and notes of meetings, referred to by the first
respondent in paragraph 26 of her answering
affidavit (the internal
documentation):
3.1.
Within five days of this order, the first
respondent shall cause to be delivered to the Honourable Mr Justice
NV Hurt (Justice Hurt)
copies of the internal documentation;
3.2.
On the copy of each document forming part of
the internal documentation, Justice Hurt shall mark or order that
part of the document
which he considers the reveal the contents of
third respondent's written or oral representations(the
representations) to first
respondent;
3.3.
The exercise referred to in paragraph 3.2
above shall be performed in accordance with any directives with any
directives which the
Honourable Justice Hurt may prescribe in order
to fulfil his mandate;
3.4.
The ruling of Justice Hurt shall be final and
binding on the parties; and
3.5.
Should Justice Hurt, for whatever reason, be
unable to commence or complete the exercise referred to in this
paragraph, the applicant
and the third respondent shall attempt to
reach agreement on another independent and impartial person to
replace
him and, if no agreement can be
reached within five days of Justice Hurt becoming unavailable, then
the chairperson of the General
Council of the Bar of South Africa
shall be requested to appoint such."
[80]
Additions to the order were apparently initiated by the parties. It
is the conduct of Jiba complained of in not complying with
the order
of 20 March 2012 and adverse remarks made by the Supreme Court of
Appeal that GCB approached this court seeking the order
to remove
Jiba from a roll of Advocates. GCB having referred to specific
paragraphs in the SCA's judgment, to which I refer later
in this
judgment, concluded in paragraph 17 of its founding affidavit as
follows:
"17. In my
submissions these observations by the
SCA
were, with respect, warranted and Jiba's
conduct in the Zuma matter falls well short of the conduct required
of an advocate of
this
Honourable Court and as contained in the Code of Conduct for members
of the NPA. She did not assist the court at arriving at
a
just verdict, and she did not perform her
duties as Acting NDPP fearlessly and vigorously in accordance with
the highest standard
of the legal
profession;
as the Code of Conduct requires. Moreover, the answering affidavit
deposed to by her, and the attitude she evinced towards
the High
Court and the
SCA,
was
less than objective, honest and sincere."
[81]
Jiba in her answering affidavit to these proceedings correctly in my
view articulated the essence of the complaints attributable
to her in
the Spy Tapes case as follows:
"241. The
complaints against me in relation to the Democratic Alliance matter
are as follows:
241.1
That I adopted
a
supine attitude to the
SCA
's
directive;
241.2
That in my answering affidavit (in the
contempt application) I did not adopt
a
position to the confidentially of the tapes or
the transcripts but "resorted to
a
metaphorically shrugging of the shoulders"
241.3
That the
SCA
referred
to my approach in the answering affidavit, in not taking
a
stance
on the confidentiality of the material sought, as disingenuous;
241.4
That I did not take an independent view about
confidentiality in the face of the order of the
SCA,
and that this conduct is not worthy of the
office of the NDPP;
241.5
That I did not assist the court at arriving at
a
just verdict, and my
attitude was less than objective".
[82]
Very often when adverse remarks are made in legal proceedings, the
person against whom the remarks are made is not given the
opportunity
to state his or her case to the impeding adverse remarks. It is for
this reason that courts do not easily make adverse
remarks. This is
one of those cases. However, as I deal with each of the complaints
levelled against Jiba in the "Spy Tapes
case", I will also
refer to her responses thereto and this will happen unfortunately at
the risk of prolonging this judgment
but, it is necessary to do so.
Courts are of course willing to reconsider adverse remarks afresh
given the responses by the person
against whom they were made.
Supine
attitude
[83]
"Supine" is an English word which according to South
African Concise Oxford Dictionary means "lying face upwards-

with the palm of the hand upwards"- "failing to act as a
result of moral weakness or indolence"- n. Latin verbal
noun
"used only in the accusative and ablative case, especially to
denote purpose."
[84]
The context in which Navsa ADP (as he then was) used the word might
give relevance to the usage of words "supine attitude."

During May 2012, DA's attorneys having received certain documents
which did not include transcripts of tape recordings which were
used
as the basis of the withdrawal of the charges against Mr Zuma. At the
end of June 2012 DA having not been satisfied with the
documents
provided and the response to the outstanding information from Jiba,
wrote to the State Attorney and recorded:
"5.
A copy of the
transcript of the recordings ('the transcript') has not been
furnished. The transcript itself and any consequent memorandum
or
report prepared in response thereto, are not covered by the
limitation to the production of the record
as
per the order of
the
SCA
for the following reasons:
5.1.
Firstly, the recordings and\or the transcript
could not possibly have been given in confidence to the first
respondent because he
quoted extensively
from
these recordings when announcing his decision to discontinue the
prosecution of the Third Respondent on 6 April 2009.
5.2.
Secondly, the limitation in the
SCA
order only relates to 'the written
representations made on behalf of the Third Respondent and any
consequent memorandum or report
prepared in response thereto or oral
representations if the production thereof would breach any
confidentiality attaching to the
representations (the reduced
record). The recordings and\or the transcript are neither written,
nor oral representation nor memorandum
or report prepared in response
thereto.
5.3.
Thirdly, the limitation in the
SCA
order does not cover memoranda or reports
prepared in response to oral representations bur merely in response
to the written representations.
5.4.
Fourthly, to the extent that internal NPA
memoranda, report or minutes of meetings deal with the contents of
the recordings and\or
the transcript itself, as opposed to Third
respondent's written or oral representations in respect thereof, they
are not covered
by the limitation in the
SCA
's order and should be produced. In other
words in the internal debate regarding the effect of what is revealed
in the recordings
on the decision on whether or not to discontinue
the prosecution, is not covered by the limitation to the extent that
such debate
does not refer to the representations themselves.
6. It is inconceivable
there are no internal NPA memoranda reports or minutes of meeting
dealing with the contents of the recordings
and\or the transcript
itself. We accordingly call on you to produce these documents, as
well as the recordings and the transcripts
themselves forthwith,
failing which our client will take all the necessary steps to compel
compliance with the order of the
SCA
Naturally, costs will be sought against your
client as well."
[85]
Then in its judgment handed down on 20 August 2014, the SCA stated:
"[15] The
exhortation in the last paragraph of the letter, set out at the end
of the preceding paragraph yielded no results.
It is common cause
that during telephone discussions in July 2012 between specific State
Attorney and DA's legal representative,
the former had indicated that
the blame for the delay was attributable to Mr Zuma's attorneys.
The
NDPP itself adopted
a
supine
attitude
."
[86]
Jiba in dealing with this criticism has now in these proceedings
responded as follows:
"242. As the
applicant points out, the Democratic Alliance matter arose from
a
decision of the then national Director of
Public Prosecutions, Mr Mokotedi Mpshe ("Mr Mpshe'J, to
discontinue the criminal
prosecution of President Zuma. The
applicant's complaint goes to my response to the directive of the
SCA
of 20 March 2012.
More
particularly the applicant's complaint goes to my interpretation of
the SCA 's directive
. I point out that
at all times during the Democratic Alliance matter I was again
represented by a team of experienced counsel,
namely advocates P
Kennedy
SC
and NH
Maenetje (whom I
am
advised
has subsequently taken silk) ("the Kennedy team”).
243.
The SCA directive is set out in paragraph 16.2
of the founding affidavit. As appears from the directive the record
of decision (of
the former National Director of Public Prosecutions)
which I was required to produce, was to "exclude the written
representations
made on behalf of Mr Zuma and any consequent
memorandum or report prepared in response thereto, or oral
representations, if the
production thereof would breach any
confidentiality attaching to the representations".
244.
As
a
result
of the tape recordings which were in the process of being
transcribed, the directive was not complied with within the
stipulated
14 days. As the bulk of the representations, which were to
be excluded from the reduced record, concerned the tape recordings, I

was concerned that the content of these could potentially breach
confidentiality relating to the representations. For that reason,
and
in order not to fall foul of the
SCA
directive, the decision was taken, on the
advice of senior counsel representing me, to obtain the input of Mr
Zuma 's legal representatives
as to whether there was any objection
to the disclosure of the transcript of the tape recordings.
245.
The applicant in the Democratic Alliance
matter, the Democratic Alliance ("the DA'J then brought an
application to compel me
to produce the record and for an order that
I be held in contempt of court, as appears from the decision of
Mathopo J, before whom
the application was argued, a copy of which is
attached hereto, marked "NJ21", the Democratic Alliance
matter concerns
the interpretation of the
SCA
's
directive.
246.
As appears further from paragraph 13 of the
decision of Mathopo J, I abided the decision of the Court as regards
the production
of the transcripts. Although the Judge held that the
proper construction of the
SCA
order
confidentiality did not extend to the transcript (at paragraph 27),
the court agreed that affording Mr Zuma an opportunity
to raise his
concerns was in line with the SCA order, and I was therefore not
found to be in contempt of court (at paragraph 50).
247.
I draw to this Honourable Court's attention
that at paragraph 32 of decision of Mathopo J, the learned Judge
criticised me for adopting
a
neutral
position with regard to the transcripts.
248.
On appeal, (at the instance of Mr Zuma) the
SCA similarly criticised me for adopting what is referred to as
'a
supine attitude" to its directive. Indeed
this is the basis of the applicant's complaint against me in this
application.
...
249.
I accept that the
SCA
has criticised me for not taking an
"independent view" about confidentiality. I respectfully
submit that this was
a
result
of adopting
a
cautious
approach, in order to ensure that I did not
unwittingly infringe on the rights of either of the parties in the
Democratic Alliance
matter. I respectfully submit that this does not
amount to conduct that this is Jess than objective, honest and
sincere and does
not render me not 'fit and proper to practice as an
advocate."
[87]
Indeed the interpretation of the order of the SCA, the relevant part
of which is quoted in paragraph 74 of this judgment, did
not appear
to have been an easy exercise. Its correct interpretation appears to
have prompted the DA to widen and clarify it, so
did Mathopo J and
the SCA as per Navsa ADP. I say so for the following reasons:
87.1
DA in its application before Mathopo J sought
relief in addition, as paraphrased in paragraph 77 supra and by so
doing sought to
widen and clarify SCA 's directive of 20 March 2012.
87.2
Mathopo J also had to deal with DA's application
for contempt of court, and in finding that no case has been made for
contempt of
court against Jiba, in paragraph 50 of his judgment,
stated:
"[50] The
submissions advanced on behalf of the first respondent is that the
delay if any, was occasioned by the third respondent's
legal
representative in considering whether to object to the transcript or
not.
Thus no fault could be attributed
to the State attorney or first respondent because in terms of the
SCA
's order. the first respondent was
obliged to afford the third respondent. an opportunity to indicate
whether he has any objection
or not. I agree with first respondent
that affording the third respondent an opportunity to raise his
concerns was in line with
the
SCA
's
order. This conduct in my view cannot be regarded as deliberate or
wilful non-compliance
with
the order. it follows that the contempt of court application must be
dismissed".
(My
emphasis).
[88]
The finding by Mathopo J as indicated above seems to be in line with
what was stated in the Democratic Alliance v The Acting
National
Director of Public Prosecutions and Others
[26]
wherein it was
said:
"[33] There was
a
debate before us about what the value would be
to the reviewing court of
a
reduced
record, namely,
a
record
without Mr Zuma's representations. Concern was also
expressed on behalf of Mr Zuma that there
might be material in the record of decision which might adversely
affect his rights and
to which he might rightly object.
The
concern was met by an undertaking on behalf of the first respondent
that. in the event of this court altering the decision of
the court
below. so as to order the production of the record of the decision
sought to be reviewed. the NDPP 's office would inform
Mr Zuma of its
contents
. Questions involving the
extent of the record of the decision and its value to the court
hearing the review application are speculative
and premature. In the
event of the order compelling production of record, the office of
NDPP will be obliged to make available
whatever was before Mr Mpshe
when he made the decision to discontinue the prosecution. It will
then fall to the reviewing court
to assess its value in answering the
questions posed in the review application. If the reduced record
provides an incomplete picture
it might well have the effect of the
NDPP being at risk of not being able to justify the decision. This
might be result of Mr Zuma's
decision not
to
waive the confidentiality of the representations made by him. On the
other hand,
a
reduced
record might redound to the benefit of the
NDPP and Mr Zuma".
[89]
That being the understanding of Mathopo J and undertaking given in
the SCA as quoted in paragraphs 82.2 and 88 of this judgment

respectively, the interpretation of the order of 20 March 2012 by the
SCA has context as understood by Jiba and articulated in
her
answering affidavit quoted in paragraph 86 above.
[90]
The additional order of the SCA quoted in paragraph 79 of this
judgment, in my view, indicates how difficult it was to implement
the
order of 20 May 2012 without clarification and additions. Seeing this
in context, Mathopo J was perhaps right in his conclusion
in
paragraph 50 of his judgment which conclusion has not been challenged
or questioned.
[91]
"Supine attitude" must therefore be seen in the context of
the preceding paragraphs. Failure by Jiba not to respond
to the
articulation in the letter of 6 June 2012 from DA attorneys referred
to in paragraph 84 of this judgment seems to have been
dictated by
two things: First, the delay by Mr Zuma's attorneys, an explanation
which was accepted by Mathopo J as indicated in
paragraph [50] of his
judgment. Second, by Jiba's understanding of paragraph 2 of the order
of 20 March 2012 which understanding
was also shared by Mathopo J.
The real question ultimately is whether her conduct was of such a
nature that she had ceased to be
a fit and proper person to remain on
a roll of advocates. In the absence of mala tides and or ulterior
motive on her part, I am
unable to find against her on the "Supine
attitude" complaint. I now turn to deal with other remarks made
against her
in the Spy tapes case.
Metaphorical
shrugging of shoulders
[92]
The word "shrugging" is described in the Oxford dictionary
as 'raising one's shoulders slightly and momentarily to
express
doubt, ignorance, or indifference'. The context in which Navsa ADP
used the words is important. I can do no better than
giving the
context by quoting what was said in paragraph 17 of the SCA judgment
handed down on 28 August 2014:
"[17]
The basis of the application,
as
foreshadowed
in the letter from the DA's attorneys
as
set
out above, was that in terms of the order in the first appeal,
a
copy of the transcript of the recordings ought
to have been furnished and that the recordings could not possibly
have been provided
to the ANDPP confidentially,
as
that office quoted publicly and extensively
from the recordings when announcing the decision to discontinue the
prosecution of Mr
Zuma. Furthermore, it
was
contended that the SCA order envisaged an
embargo only on written representations made on behalf of Mr
Zuma and any subsequent memorandum or report
in relation thereto, if the production thereof would breach any
confidentiality attaching
to the representations. The recordings
and/or transcripts, it was submitted, were neither written nor oral
representations nor
a memorandum or report related to the
representations. In addition, it was asserted that memoranda or
reports relating to internal
debate within the office of the NDPP
concerning the recordings were not covered by any limitation
envisaged in the order in the
first appeal. The DA
was
adamant that internal memoranda, reports or
minutes of meetings addressing the transcripts must exist and are
susceptible to disclosure.
In the founding affidavit on behalf of the
DA the following appears:
'The notion of an
accused making representations to the First Respondent "in
confidence", which representations then lead
to the
discontinuation of a prosecution, is already absurd. For the time
being, the Applicant has elected to live with that absurdity.
But the
Applicant cannot accept and will not allow the NDPP to conceal the
foundation of the decision, i.e. the recordings and
the internal
debate regarding them."
[93]
Then in paragraph 18, Navsa ADP mentioned the 'metaphorical shrugging
of shoulders" as follows:
"It
is important to note that the ANDPP's answering affidavit does not
adopt
a
position in
relation to the confidentiality of the tapes or transcripts.
It
resorts to
a
metaphorical
shrugging of the s
houlders. and places
the reason for its non-compliance with the order of this court in the
first appeal at the door
of
Mr Zuma 's legal representatives, submitting that the present dispute
was due to them not being timeously forthcoming with a
final position
on the disclosure of the tapes or the transcripts. The NDPP's office
assumes the position that the lack of consent
to the release of the
tapes or transcripts was sufficient to forestall compliance with the
order in the first appeal."
[94]
What is quoted in paragraph 86 as a response to the criticism
levelled against Jiba, in my view, serves also as a response
to the
"metaphorical shrugging of shoulders." The delay or
forestalling of compliance with the SCA order of the 20 March
2012
should similarly be seen in the context of what I said with regards
to the "supine attitude", particularly now seen
in the
light of Jiba's responses as quoted in paragraph 86 above. What
Mathopo J said in paragraph 50 of his judgment is equally
important.
The explanation for the delay was accepted, but even most
importantly, it was also the understanding of Mathopo J that
in terms
of the SCA order of 20 March 2012, Mr Zuma or his attorneys were to
be contacted before making the tapes and the transcript
available to
DA. The submission made on behalf of Mr Zuma as articulated in the
SCA judgment of 28 August 2014 in my view, is also
relevant to Jiba's
reason for taking the position as she did. Navsa ADP referred to the
submission in his judgment as follows:
"In
the high court, even though Mr Zuma had not filed an answering
affidavit, counsel on his behalf
submited that
confidentiality, as envisaged in this court's order in the first
appeal, extended to everything comprising representations
made on Mr
Zuma's behalf. It was contended that since the office of the NDPP did
not itself take steps to obtain the recordings,
but accessed them
through the
efforts
of Mr Zuma, separating them from the representation would be
illogical and irrational."
[27]
94.
1
It could not have been easy for Jiba to
deal with the issue of confidentiality seen in the light of stance
articulated by Mr Zuma's
attorneys. Considering Jiba's responses in
these proceedings to the adverse remarks made
against her, I am unable to find that her stance to abide by the
decision of the court
in the proceedings before Mathopo J was
"metaphorical shrugging of shoulders" and neither can I
find mala tides on her
part or that she was motivated by ulterior
motive. I now turn to deal with the other complaints levelled against
Jiba.
'Disingenuous.
not worthy of office of NDPP. less objective and loath to take
independent view'
[95]
The words are randomly taken from the judgment of the SCA wherein
Navsa ADP inter alia, stated:
"[41] One
remaining aspect requires to be addressed, albeit briefly. As
recently
as
April this
year, this court in the National Director of Public Prosecutions v
Freedom Under Law
2014 (4) SA 298
(SCA) criticised the office of the
NDPP for being less than candid and forthcoming. In the present case,
the then NDPP, Ms Jiba,
provided an opposing affidavit in tenderised
hearsay and almost meaningless terms. Affidavits from people who had
first-hand knowledge
of the relevant facts were conspicuously absent.
Furthermore, it is to be
decried
that an important institution such
as
office
of the NDPP
is loath to take an
independent view. about confidentiality
,
or otherwise, of documents and other materials within its possession,
particularly in the face of an order of this court. Its
lack of
interest in being assistance to either the high court or this court
is baffling. It is equally lamentable that the office
of the
NDPP took no steps before the commencement of
litigation in the present case to place the legal representatives of
Zuma on terms
in
a
manner
that would have ensured either
a
definitive
response by the latter or
a
decision
by the NPA on the release of the documents and material sought by the
DA.
This conduct is not worthy of the
office of the NDPP
. Such
conduct undermines the esteem in which the
office of the NDPP ought to be held by citizenry of this country".
[96]
Whilst these remarks were made in passing, but considered together
with what was stated in paragraph 93 above, they serve as
an
indictment on Jiba. However, the criticism must be seen in the
context of what has already been said in the preceding paragraphs.

Again, the responses to the criticisms require this court to
reconsider the remarks and in particular whether Jiba has ceased to

be a fit and proper person to remain on a roll of advocates. 'Freedom
Under Law' referred to in the quotation above in reference
to Mdluli
case and I deal later hereunder with the conduct of Jiba, Mrwebi and
Mzinyathi in that case.
[97]
As regards the hearsay information and failure to file confirmatory
affidavit, Jiba of relevance, explains in paragraph 248
of her
answering affidavit to the present proceedings as follows:
"...Navsa JA also
criticised me, at paragraph 26 of his judgment, for referring to what
I had been told by her Mpshe and not
filing
a
confirmatory affidavit by him. With respect,
a
confirmatory affidavit was indeed filed by Mr
Mpshe, and I attach
a
copy
of it hereto marked "NJZ2". Although I cannot find
a
copy with
a
date
stamp, it will be observed that this affidavit was signed by Mpshe
and commissioned by Warrant officer Seleka in Sinoville
Police
Station
on 3 April
2013, which was three months before the hearing of the matter before
Mathopo J on 24 July 2013. It seems that this must
have erroneously
been omitted from the record of appeal to the
SCA.
I have no explanation for why this was the
case as I took no part in the appeal nor was I responsible for the
fl1ing of the documents.
"
[98]
I have already dealt with failure to take an independent view on
confidential ity in the face of the order of the SCA. Jiba,
DA and
Mathopo J in my view, sought to interpret the order of 20 March 2012.
I am unable to find that Jiba's failure to take an
independent view
with the benefit of her responses in these proceedings can be seen as
unworthy conduct to justify removal from
the roll of advocates or
suspension therefrom.
[99]
By the time the matter was heard before Mathopo J, Mr Zuma's
attorneys had already indicated what Mr Zuma's stance was, which
is
more accurately stated by Navsa ADP in paragraph 22 of his judgment
quoted in paragraph 94 above. His failure to put Mr Zuma's
attorneys
on terms should also be seen in context, more so Jiba's replies to
the complaint levelled against her in this regard.
As she says, she
did not want to 'fall foul of the SCA directive' and 'the decision
was taken on the advice of a senior counsel'
representing
her, 'to obtain the input of Mr Zuma's legal representatives as to
whether there was any objection to the disclosure
of the transcript
of the tapes recordings'.
[28]
I therefore find
that no case has been established with regard to the Spy tapes
matter. But that cannot be said with regard to Mdluli
case (Freedom
Under Law case) to which I now turn to consider.
MDLULI
CASE (FUL)
[100]
Freedom Under Law (FUL) instituted review proceedings against the
National Director of Public Prosecutions and others in terms
of which
FUL wanted the court (as per Murphy J) to review and set aside, inter
alia, a decision of Mrwebi to discontinue the prosecution
of Lt
General Richard Mdluli (Mdluli) on corruption and fraud charges.
[101]
Who is Mr Richard Mdluli? He was adequately profiled by Brand JA in
his judgment handed down on 17 April 2014
[29]
.
I can do no better than to paraphrase what was articulated by Brand
JA: From about 1996 until 1998 one Mr Tefo Ramogibe (the deceased)

and Mdluli were both involved in a relationship with Ms Tshidi
Buthelezi (Buthelezi). The deceased and Buthelezi were secretly

married during 1998. Mdluli was upset about this and addressed the
issue on numerous occasions with Buthelezi, the deceased and
members
of their respective families. At that time Mdluli held the rank of
senior superintendent and the position of the detective
branch
commander at the Vosloorus police station. Since 1 July 2009 Mdluli
held the position of National Divisional Commissioner
in the Police
Services (SAPS), a position also described as head of Crime
Intelligence Unit and at that time he assumed the rank
of Lieutenant
General.
[102]
On 31 March 2011 Mdluli was arrested and charged with 18 criminal
charges including the murder of the deceased. Many of these
charges
rested on allegations by relatives and friends of the deceased,
Buthelezi and other persons associated with Mdluli including

policemen under his command. The further allegations were that Mdluli
brought pressure to bear upon these people through violence,

assaults, threats and kidnapping and in one instance rape, with the
view to compelling their co-operation in securing the termination
of
the relationship between the deceased and Buthelezi. On one occasion,
Mdluli had allegedly taken the mother of the deceased
to the
Vooslorus police station where she found the deceased injured and
bleeding. In the presence of the deceased's mother, Mdluli
warned the
deceased to stay away from Buthelezi. The deceased was killed few
days thereafter: It is important to mention that the
murder and other
charges never proceeded to trial. Much of the original docket and
certain exhibits were lost or disappeared. Information
about
discontinued investigation resurfaced after Mdluli was appointed the
head of Crime Intelligence in 2009.
[103]
On 8 May 2011 Mdluli was suspended from office and disciplinary
proceedings were instituted against him. After Mdluli's arrest
and
his suspension from office some members of crime Intelligence Unit
came forward with information concerning alleged crimes
committed by
some of its members, including Mdluli. As a result of further
information, instruction was given to investigate those
allegations.
Upon investigations, warrant for Mdluli's arrest on charges of fraud
and corruption was authorised and executed on
20 September 2011.
[104]
Fraud and corruption charges emanated from the alleged unlawful
utilisation of funds held in the Secret Services account created
in
terms of the Secret Services Act no. 56 of 1978 for the private
benefit of Mdluli and his wife. It was alleged that one of Mdluli's

subordinates purchased two motor vehicles ostensibly for use by the
Secret Services but structured the transactions in such a manner
that
a discount of R90 000.00 that should have been credited to the Secret
Services account was utilised for Mdluli's benefit.
Further
allegations were that the two motor vehicles were registered in the
name of Mdluli's wife and appropriated and used by
the two of them
exclusively.
[105]
On 3 November 2011 Mdluli wrote a letter to the President of the
Republic of South Africa, Honourable Mr Jacob Zuma, the Minister
of
Safety and Security and to the Commissioner of Police stating that
the charges against him were the result of conspiracy among
senior
officers including the then Commissioner of Police, General Bheki
Cele who suspended Mdluli and head of the Hawks, General
Anwar
Dramat. In the letter it was further stated by Mdluli:
"...In the event
that I come back to work, I will assist the President to succeed next
year."
[106]
"Next year", was reference to African National Congress
(ANC) elective conference in Mangaung which was to take
place towards
the end of 2012. The allegations of conspiracy led to the appointment
by the Minister of Safety and Security of a
task team which later
reported that there was no evidence of a conspiracy and that the
police officers who had accused Mdluli of
criminal conduct had not
acted in bad faith. On 17 November 2011 Mdluli's legal
representatives made representations to Mrwebi
in his capacity as
Special Director of Public Prosecutions and Head of Investigating
Directorate, seeking the withdrawal of the
fraud and corruption
charges. The representations repeated what was said to President Zuma
and others regarding conspiracy theory.
The representations were also
made with reference to the murder and other related charges to
Advocate KMA Chauke (Chauke), the
DPP South Gauteng for the
withdrawal of those charges. The fraud and corruption charges were
withdrawn in a letter dated 4 December
2011, although it was
contended by Mrwebi that the decision was actually taken on 5
December 2011. On 1 February 2012 Chauke decided
to withdraw the
murder and related charges. These decisions formed the subject of a
dispute before Murphy J in the North Gauteng
High Court in review
proceedings brought by FUL.
[107]
I found it necessary to give this lengthy back-ground about Mdluli in
order to show the kind of personality, Jiba and Mrewbi
in particular,
had to deal with. Jiba, Mrewbi and Mzinyathi are respondents in the
present proceedings all of them implicated in
Mdluli case, complaints
of which serve as the basis for GCB's application to remove them from
a roll of advocates, the contention
being that they have ceased to be
fit and proper persons. I deal with the complaints against each one
of them hereunder and in
some respects those against Jiba overlapping
with some of the complaints levelled against Mrwebi.
Complaints
against Jiba in Mdluli case
[108]
Allegations against Jiba in Mdluli case are in my view, correctly
categorised in her answering affidavit to the present proceedings
as
follows:
108.1
That she did not file a full and complete rule 53
record notwithstanding an order compelling her to do so.
108.2
That she did not file an answering affidavit by
the due date and had to be directed to do so by the Deputy Judge
President and in
addition that she did not file written heads of
argument timeously;
108.3
That her reasons for the various delays were
sparse and unconvincing;
108.4
That her conduct in particular is unbecoming a
person of such high rank in the public service.
108.5
That she did not disclose to the court that on 13
April 2012, she had received a 24 page memoranda from Adv.
Breytenbach and that
she deliberately attempted to mislead the court.
108.6
That she did not make a full and frank disclosure
in order to refute, explain or ameliorate serious allegations made
against her.
108.7
That the SCA had also criticised her conduct.
[109]
In dealing with the case against Jiba, I will pick up on each
complaint made against her insofar as is material, her responses

thereto and evaluation of the evidence on each of the complaints so
considered material. I will do so without necessarily following
the
sequence of the complaints identified in paragraphs 108.1 to 108.7
above.
Failure
to file record of decision timeously
[110]
In paragraph [73] of this judgment I referred to the provisions of
sub-rule (1) of Rule 53. Because of the importance of the
provisions
of Rule 53 to the topic under discussion, I find it necessary to
repeat the rest of the provisions in their entirety:
"(2) The notice
of motion shall set out the decision or proceedings sought to be
reviewed and shall be supported by affidavit
setting out the grounds
and the facts and circumstances upon which applicant relies to have
the decision or proceedings set aside
or corrected.
(3) The registrar
shall make available to the applicant the record despatched to him as
aforesaid upon such terms as the registrar
thinks appropriate to
ensure its safety, and the applicant shall thereupon cause copies of
such portions of the record as may be
necessary for the purposes of
the review to be made and shall furnish the registrar with two copies
and each of the other parties
with one copy thereof, in each case
certified by the applicant as true copies. The costs of
transcription, if any, shall be borne
by the applicant and shall be
costs in the cause.
(4)
The
applicant may within ten days after the registrar has made the record
available to him, by delivery of
a
notice
and accompanying affidavit, amend, add to or vary the terms of his
notice of motion and supplement the supporting affidavit.
(5) Should the
presiding officer, chairman or officer, as the case may be, or any
party affected desire to oppose the granting of
the order prayed in
the notice of motion, he
shall- (a) within
fifteen days after receipt by him of the notice of motion or any
amendment thereof deliver notice to the applicant
that he intends so
to oppose and shall in such notice appoint an address within eight
kilometres of the office of the registrar
at which he will accept
notice and service of all process in such proceedings; and (b) within
thirty days after the expiry of the
time referred to in sub-rule (4)
hereof, deliver any affidavits he may desire in answer to the
allegations made by the applicant.
(6) The applicant
shall have the rights and obligations in regard to replying
affidavits set out in rule 6.
(7) The provisions of
rule 6 as to set down of applications shall mutatis mutandis apply to
the set down of review proceedings.”
[111]
"The record despatched to him" in sub-rule (3) above is
reference to the record contemplated in sub-rule (1) (b)
quoted in
paragraph [73] of this judgment. The objective of rule 53 is obvious.
The time frames are to ensure that review proceedings
are not
unnecessarily delayed. Secondly, despatching to the Registrar the
record of the proceedings sought to be corrected or set
aside,
together with such reasons as the decision maker is by law required
to give, and notifying the applicant that this has been
done and
making such record available to the applicant, is to ensure that a
party aggrieved by the decision is properly informed
as to the route
to follow. The rule serves as a tool to ensure that any challenge to
the proceedings sought to be reviewed is well
considered and properly
pleaded. For this purpose, the applicant or aggrieved party is under
Sub-rule (4) given an opportunity
by delivery of a notice and
accompanying affidavit, to amend, add to or vary the terms of his
notice of motion and supplement the
supporting affidavit if need be.
Similarly, the decision maker is in terms of Sub rule (5) (b) given
the opportunity to deliver
any affidavit he or she may desire in an
answer to allegations made therein and any further reasons as
contemplated in sub-rule
(1) (b).
[112]
Therefore compliance with Rule 53 regarding time frames and providing
complete record, is not just a procedural process, but
is substantive
requirement which serves to ensure that the substance of the decision
is properly put to the fore at an early stage.
Any attempt to
frustrate this, should be met with displeasure by our courts.
[113]
On 15 May 2012 Jiba was served with court papers in the application
brought by FUL and 6 June 2012 was the date on which Jiba
and Mrwebi
were to despatch to the registrar the record of the decision and to
advise FUL that they have done so. Instead, and
without complying
with the time frames, they briefed and consulted with Motimele SC and
his team for the first time on 11 June
2012.
[114]
Reasons for the delay is sought to be explained in paragraph 86 to 90
of Jiba's answering affidavit in these proceedings and
are
paraphrased as follows:
114.1
Motimele SC was briefed, inter alia, to advise on
the interpretation of Rule 53 and the record of the decision as
contemplated in
Rule 53. The record of the decision was then
allegedly prepared on the advice of Motimele SC. In paragraph 86 of
the answering
affidavit to these proceedings, Jiba inter alia,
states:
"...It is
important to note that no decision by me personally in my official
capacity as an Acting NDPP was to be reviewed.
My citation insofar as
these decisions are concerned is, in my view, in official capacity as
acting head of the NPA and not because
I had made any decision."
114.1.1.
I find the statement a bit startling, especially
taking into account who is Jiba: She was appointed as Acting National
Director
of Public Prosecutions on 28 December 2011. Before that, she
had gone through the ranks in the legal fraternity and within the
prosecuting authority. In addition, she has a good academic record.
In 1987 she completed Bluris degree, followed by LLB in 1989
obtained
at Walter Sizulu University (then known as University of Transkei).
In 1994 she obtained an industrial diploma from Damelin
College. In
1996 she graduated with an LLM degree in commercial law. Her work
professional career started in1988 in Peddie in the
Eastern Cape
where she was employed and worked as a prosecutor in a magistrate's
court. In 1997 she resigned from the public service
and commenced
articles of clerkship with attorneys Qunta Ntsebeza in Cape Town. In
1998 she qualified as an attorney. In 1999 she
moved to Pretoria to
work at an accounting firm, Deloitte and Touche as a senior forensic
consultant. Later that year, she joined
the Investigating Directorate
for Serious Economic Offences (IDSEO) in Pretoria as a senior state
advocate. In 2001 the IDSEO was
disbanded and the Directorate for
Directorate of Special Operations ("DSO") within the NPA
was established. Later in
2001 she was appointed as a Deputy Director
of Public Prosecutions. In 2006 she was appointed senior Deputy
Director of Public
Persecutions. She was then relocated to the
specialised commercial crimes court in Pretoria in 2009. On 22
December 2010 she was
then appointed to the position of a Deputy
National Director of Public Prosecutions and then followed by her
acting stint as a
National Director of Public Prosecutions from
December 2011.
114.1.2.
So, she is clearly an astute lawyer who must know
that as an Acting National Director of Public Prosecutions at all
material times
thereto, the buck had to stop with her and it was in
that capacity that FUL cited and served her with the review
proceedings. The
Act is very clear:
'Subject to the
provisions of the Constitution and NPA Act, any director shall
subject to the control and the directions of the National
Director. exercise the powers referred to in subsection s(1)
in
respect of-
(a)
the area of jurisdiction for which he or she
has been appointed; and
(b)
such
offences and in such courts, as he or she has been authorised in
writing by the National Director or
a
person
designated by the National Director
[30]
.
114.1.3.
Powers referred to in subsection (1) are powers
as contemplated in section 179 (2) of the Constitution and all other
relevant sections
of the Constitution to inter alia, discontinue
criminal proceedings. Therefore, the statement: "...
no
decision by me personally in my official capacity
as
an acting ANPP
was
to
be reviewed',
insomuch as it was intended to
serve as an execuse for not providing the record of decision in
accordance with the time periods
set out in rule 53, is clearly not
good enough and Jiba knew or ought to have known about this. Her
failure to ensure that there
was compliance was therefore not only
unwarranted, but was, in my view, also deliberate and or reckless.
She has a vast experience
to know where her responsibility in the
shoes of National Director of Public Prosecutions lies, otherwise she
would not have been
appointed to act in that position.
114.2
In paragraph 87 of her answering affidavit to
these proceedings, she inter alia, states:
"It is also
important to point out that the advice on what should be contained in
the record was given and accepted at
a
time
when the reviewability of prosecutorial decisions to
prosecute
or not to prosecute was still largely uncertain and had not
been pronounced upon definitively by the
court..."
114.2.1.
Just
starting with the latter statement regarding
'uncertain
and had not been pronounced upon definitively by the court ...'
regarding
the reviewability of prosecutorial decisions, one is forced to refer
to what was articulated in our case law before the
challenged
decisions of Mrwebi and Chauke to drop charges against Mdluli were
taken. On 20 March 2012 in the case of Democratic
Alliance v The
Acting National Director of Public Prosecutions
[31]
,
of relevance, it was held:
"[27] Whilst
there appears to be justification for the contention that the
decision to discontinue
a
prosecution
is of the same genus
as a
decision
to institute or continue
a
prosecution,
which is excluded from
the
definition of administrative action in terms of Section 1 of (ff) of
PAJA, it is not necessary to finally decide
that question.
Before us it was
conceded on behalf of the first and third respondents that the
decision to discontinue
a
prosecution
was subject to rule of law. That concession in my view was rightly
made. As recently as 1 December 2011. in Democratic
Alliance v
President of the Republic of South
Africa and Others 2012(1) SA 417 (SCA)
this court noticed that the office of the NDPP was integral to the
rule of law and to our
success as democracy. In that case. this court
stated emphatically that the exercise of public power. even if it
does not constitute
administrative action. must comply with the
constitution. The Constitutional Court
has respectively emphasised this point.
"
114.2.2.
Now, in Mdluli case, FUL pleaded its cause of
action on the basis that the withdrawal of the charges against or
discontinuance of
the prosecution of Mdluli was an exercise of public
power to be performed in accordance with the rule of law and the
supreme law
of the land (the Constitution). The challenge by FUL was
.that the withdrawal of the fraud and corruption charges against
Mdluli
in the face of prima facie case was in conflict with the rule
of law and the Constitution based on the facts briefly stated in
paragraph 104 of this judgment.
114.2.3.
Jiba was the Acting Director of Public
Prosecutions when the judgment quoted in part in paragraph 114.2.1
above was handed down
on 20 March 2012. She was therefore fully aware
of what was stated therein or ought to have known, in particular the
concession
that whatever the prosecution authority does, must comply
with the rule of law and the Constitution. So, for her to allege that

when she deposed to her answering affidavit in Mdluli case on 2 July
2013, she moved from the premise that the decisions of Mrwebi
and
Chauke were not reviewable, could not have been made in good faith
seen in the context of the concession made as repeated in
the
quotation referred to in paragraph 114.2.1 above and the pleaded
cause of the review of the decision of Mrwebi. Therefore the
delay
and reasons for not providing the record of the decision was
completely unjustified and deliberate.
114.2.4.
I can do no better than repeating, at the risk of
prolonging this judgment, what Navsa JA said in his judgment handed
down on 20
March 2012:
"[32] The office
of the NDPP exercises public power and is subject to the constraints
set out in the authorities referred to
above.
Having
made the concession
that the
decision to discontinue the prosecution was subject to
a
rule of law review
.
It
was nevertheless submitted on behalf of
the first and third respondent that such
a
review would be
a
narrow one, on limited grounds. In light of
primary concession made on behalf of the respondents, it is for
present purposes not
necessary to debate
the
extent to which
a
decision
to discontinue
a
prosecution
is reviewable ..." (My
emphasis).
114.2.5.
"On limited grounds",
should
for the present purposes be seen in the context of the pleaded
failure to comply with the rule of law and the Constitution
by
withdrawing corruption and fraud the charges against Mdluli in the
face of prima facie evidence.
114.2.6.
Now coming back to the other part of the
quotation in paragraph 114.2 above, Jiba did not need an
'advice
on what should be contained in the record.'
She
knew or ought to have known and briefed fully on why Mrwebi took the
decision to discontinue the fraud and corruption charges
against
Mdluli. She knew or ought to have known what evidence and
documentation Mrwebi relied upon for the decision, for example,
what
was contained in the docket. So, it was incumbent on Jiba and Mwerbi
to advise whoever they had briefed on the matter of the
reasons for
the decision to discontinue fraud and corruption charges against
Mdluli and if they had done so, they would not have
speculated or be
uncertain about which documents and or information was necessary to
form part of the record. In any event, Rule
53 is very clear. The
decision maker is required to provide the aggrieved party via the
Registrar the record of decision or proceedings
sought to be
corrected or set aside together with such reasons as he or she is by
law required or desire to give or make as contemplated
in sub-rule
(1) (b). If Jiba was worried about confidentiality, for example,
representations by Mdluli, she could have resorted
to and dealt with
the matter by way of an undertaking postulated in the matter of
Democratic Alliance v Zuma and Others, the relevant
portion of which
the SCA in dealing with the topic:
"Production
of Record"
stated
as quoted in paragraph [88] of this judgment.
114.2.6.
It cannot be difficult for any decision maker to
know the reasons, information and or documentation relied upon for
any challenged
decision under rule 53. For this, Jiba and or Mwerbi's
suggestion that the advice given to them about the record of the
decision
was the reason for the delay in complying with the
provisions of Rule 53, has no legal basis. The delay was their own
making and
was completely unreasonable, unwarranted and viewed in
context, signified bad faith on the part of Jiba and Mrwebi, bearing
in
mind that court papers in Mdluli case were served on them on 15
May 2012, that is, two months after the SCA handed down its judgment

on 20 March 20012 in DA case against Mr Zuma.
Failure
to provide complete record
[115]
The complaint is raised in GCB founding affidavit as follows:
"8.13 Rule 53 was
not complied with. The "record" filed in the murder and
related charges case comprised
a
copy
of the charge sheet and three letters compiled with
a
two page document entitled "Reasons for
decision".
The "record"
filed in the case of theft and corruption charges comprised
a
copy of the charge sheet. three
internal memoranda. a
fax
and two letters together with
a
document entitled 'brief reasons for
the withdrawal of charges preferred
against. L TG Mdluli and another dated 5 July 2012 comprising 13
pages.
8.14 As
a
result of the respondent's failure to file
a
proper record, FUL brought an application in
terms of Rule 30 A in order to compel them to do
so.
Such an order was granted by Prinsloo J on 3
August 2012... The order was not complied with."
[116]
Jiba in paragraph 87 of her answering affidavit in these proceedings
seems to attribute the incomplete record on account of
protection of
'the identity of informers and other privileged information, which
an accused person is ordinarily not entitled to have sight of
in
criminal proceedings and that such documents fall outside of "PART
A" of the docket that an accused person is entitled
to have
access to. In addition, there was uncertainty
as
to whether in
the situation of
a
decision to withdraw charges,
representations made by the accused (as had been received from
Mdluli) should form part of
a
rule 53 record."
[117]
I should be worried about Jiba's generalisation instead of being
specific and helpful. Starting with Mdluli representations,
Jiba is
not saying Mdluli claimed confidentiality in his representations for
the withdrawal of the charges against him. If Jiba
was unclear about
Mdluli's stance on his representations, the least she could have done
was to establish from Mdluli if his representations
could be provided
as part of the record of the decision in terms of rule 53. Complete
record of the decision and subsequent reasons
for the decision if
any, may discourage the aggrieved party to pursue a challenge to any
decision taken by a public body.
[118]
What is referred to as Part A of the docket, would ordinarily be
instructions by the prosecuting team and memoranda if any
in the
investigation process. That may not necessarily constitute evidence
admissible in a court of law and may not form the basis
to determine
the presence or absence of prima facie evidence. Jiba because of her
generalisation and avoidance is unhelpful in
this regard. For
example, which "privileged information" is he talking
about? It is not consistent with an officer of
the court whose main
concern should be to assist the court in arriving at a just decision.
The identity of the informers, and other
privileged information as
alleged in paragraph 87 of Jiba's answering affidavit, should in any
event be seen in context. The information
that led to the corruption
and the fraud charges been preferred against Mdluli did not come from
the informers, but rather from
fellow colleagues of Mdluli. That
being so; and taking into account the general nature of Jiba's
attempt to deal with the complaint
against her, something which is
not different from what she said previously, caused adverse remarks
to be made. Murphy J referred
to it as "sparse", but
despite these remarks, Jiba did not find it necessary to take the
court into her confidence and
deal with the allegations in some more
details given the opportunity to do so in the present proceedings.
Clearly the points taken
by Jiba in this regard had no merit from the
start. For this, she must be found to have acted contrary to the oath
she took when
she was admitted as an advocate and in a way flouted
the rules of game of the high position she holds and or held in the
prosecuting
authority at all material times hereto.
Failure
to comply with the directive by Deputy Judge President
[119]
On 8 October 2012 FUL delivered supplementary affidavit in terms of
rule 53 (4) and on 14 March 2013 it filed a further supplementary

affidavit. By that time, no single answering affidavit was delivered.
As a result, on 3 June 2013 FUL's attorneys wrote to the
Deputy Judge
President Ledwaba to arrange a date for the hearing of the
application. On 5 June 2013 a directive was issued directing
Jiba and
Mrewbi to file answering affidavit by not later than 24 June 2013. On
?June 2013 the state attorney Mr JE Ngoetjana who
was handling FUL
case on behalf of Jiba and Mrwebi was removed from the case and
Mothimele SC, Notshe SC and Adv S Phaswane who
had been on brief all
along were then withdrawn from the case. This was after Ledwaba DJP
had given directive on 5 June 2013 to
file answering affidavit by
Monday 24 June 2013.
[120]
According to Jiba, on 18 June 2013, that is, eleven days after the
mandate of Motimele SC was terminated and 15 days after
DJP Ledwaba
had given directive to file answering affidavits by the 24 June 2013,
Motau SC team was briefed to replace Motimele
team. He was instructed
to draft answering affidavit, an application for condonation, consult
with Jiba and her team, to prepare
heads of argument and argue the
matter. On Friday 21 June 2013 Motau SC team sent a draft answering
affidavit to be considered
and deposed to by Jiba after consultation.
Jiba and Mrwebi were also requested to return the draft affidavit and
comments if any
by mid-morning on Sunday 23 June 2013. The request
and the deadline set by the Deputy Judge President were not adhered
to, neither
was the request by Motau SC team. Instead, on 25 June
2013, a day after the expiry of the deadline set by the Deputy Judge
President
for the filing of the answering affidavit and two days
after Motau SC's request was not met, Motau SC received an email to
which
two draft affidavits by Jiba and Mrwebi were attached. This was
contrary to the one answering affidavit which was proposed by Motau

SC to be deposed to by Jiba as the head of the prosecuting authority
at the time and presumably with confirmatory affidavit/s to
be made
by Mrwebi and those who might have been referred to in the answering
affidavit.
[121]
Jiba in paragraph 79.2 of her answering affidavit in these
proceedings correctly set out one of the complaints levelled against

her by GCB as follows:
" 79.2 That I did
not file answering affidavit by the deadline directed by the Deputy
Judge President"
[122]
One would have expected that she will offer an explanation. However,
that was not to be. The complaint is sufficiently set
out in
paragraph 8.19 of the founding affidavit in these proceedings to
which the answer is offered by Jiba as follows:
"AD paragraph 8.
19
155.Save to deny that
the draft answering affidavit prepared by Motau
SC
team was sent to me on 21 June 2013, and that
the email of the 25 June 2013 (annexure
"GCBB'J
came from my office I admit the remainder of
the content of this paragraph. The reasons why two separate
affidavits were prepared
and why the LAD did not agree with the
approach of the Motau
SC
team
that I should be the main deponent to the answering affidavit, is
dealt with above."
[123]
The quotation above was preceded by the following statement in
paragraph 101 of Jiba's answering affidavit in the present

proceedings:
" ...Indeed as
stated by the applicant in paragraph 8.19, the Motau
SC
team prepared
a
draft answering affidavit prior to any
consultation with representatives from NPA. I deny however that this
draft was sent to me
personally. As appears from annexure "GCB12"
this email was not sent to me. I further deny that the email dated 25
June
2013 (i.e annexure "GCB13'J was sent from my office. It was
in fact
sent on mv behalf
by
Adv Chita from the LAD."
[124]
Jiba cannot escape the criticism by seeking to attribute the blame to
LAD and the emails not having been sent to her personally.
The
context is this:
124.1
The directive which was given on the 5 June 2013
to file answering affidavit by 24 June 2013 was followed by a meeting
on 7 June
2013 between Jiba, her team and acting deputy state
attorney Mr Chouw and Mr Tshivase. Then in paragraph 97 of the
answering affidavit
in the present proceedings, Jiba states:
"After discussion
we agreed that since the legal team for the NPA had failed to file
the answering affidavit within time periods
required by the rules,
their mandate should be terminated and they should be replaced".
124.1.1.
'The legal team for the NPA,' she is referring to
Motimele team. So, Jiba knew at least by 7 June 2012 about the
directive given
by the Deputy Judge President. From that date
onwards, she had a flickering red light pointing towards the deadline
of the 24 June
2013 set by the Deputy Judge President. But, she did
nothing until on18 June 2013 when Motau SC was briefed. In the
present proceedings
she does not explain what has happened between 5
and 18 June 2013.
124.1.2.
Insofar as she might have wanted to blame LAD,
she was mistaken, because the final responsibility rested on her, and
she had a duty
to ensure that the flickering of red light did not to
go beyond 24 June 2013. That however, did not worry Jiba as it would
appear
later hereunder. As explained by Jiba, the Legal Affairs
Division ('LAD') is a division within the NPA tasked with handling of
all matters pertaining to the civil litigation involving the NPA. It
is headed by a Deputy National Director of Public Prosecutions
who at
all relevant times hereto was Adv. Nomvula Mokhatla and was assisted
inter alia, by
Deputy
Directors, Senior State Advocates and Senior Prosecutors. When court
papers against the NPA are received, they are referred
to LAD and the
Deputy National Director heading LAD. Thereafter, they are referred
to a member of their team who would then prepare
a memorandum on
steps to be taken and that would then be discussed with the Deputy
National Director.
A consultation will then be
arranged to brief and advise the National Director and for the
present proceedings (Jiba) who was the
Acting National Director at
the time. It will then be decided how LAD intends to handle the
matter and thereafter the state attorney
will be briefed.
(My emphasis).
124.2
Jiba did not seem to be worried by the flickering
of the red light. Despite the request to return the draft answering
affidavit
by Sunday morning of 23 June 2013, with such comments as
Jiba and Mr Mrwebi might wish to make, the request was not heeded to.
The fact that an email of 21 June 2013 to which the draft affidavit
was attached, was not sent to Jiba personally, is not an excuse.
It
should be concluded from the email of the 26 June 2013 sent by Motau
SC to the State Attorney that Jiba knew or ought to have
known of the
contents of the email of 21 June 2013 before 24 June 2013:
124.2.1.
The following is recorded by Motau SC in the
email of 26 June 2013:
"A draft was
produced and circulated on Friday with
a
request that comments, if any, be sent to us
by mid-morning of Sunday, 2:1° of June 2013. The requested
comments were not received
as stipulated.
We
received an email to the effect that an affidavit be prepared in the
name of Adv. Mrwebi. which we advised has been incorrect
.
This despite, we note that the same outcome is sought to be achieved
by dividing the affidavits as proposed'' .
124.2.2.
The latter statement quoted above was prompted by
an email of 25 June 2013 to Motau SC from the state attorney in which
it was recorded:
"Please find the draft
amended affidavit for your attention. We have separated the affidavit
of Jiba from that of Adv. Mrwebi'
.
124.2.3.
Clearly, the statement,
"we
have received an email to the effect that an affidavit be prepared in
the name of Adv Mrwebi, which we have advised has
been incorrecf' ;
is reference to a stand-alone email before
the email of 25 June 2013 to which 'separated affidavits of Adv. Jiba
from that of Adv.
Mrwebi' were attached. Jiba must have indicated
before 25 June 2013 or per the email of 25 June 2013 that she did not
want to depose
to any affidavit. Most importantly, she must have
known of the request by Motau SC to comment on the draft answering
affidavit
and to have it returned by not later than Sunday 23 June
2013.
124.2.4.
It is actually worrying that an officer of the
court, who occupied and continues to occupy a very important high
profile public
office within the prosecuting authority by virtue of
being an admitted advocate, would adopt that kind of an attitude.
Wishing
to wash her hands at every given opportunity prevailing has a
bearing on her fitness to remain on a roll of advocates. What is even

more worrying is Jiba's failure to deal with the statement by Motau
SC as quoted in paragraph 124.2.1 above. Reference to the email
of 26
June 2013 addressed to the State Attorney by Motau SC and the
quotation in paragraph 124.2.1 is dealt by Jiba as follows:
"AD PARAGRAPH
8.20
156.
I deny that the email dated 26 June 2013 was
addressed to myself or the second respondent. It was sent to Adv.
Chita and Adv. Mokhatla
of the LAD".
124.2.4.
As to whom the email was sent, is really not the
issue. The issue is how Jiba dealt with the directive by the Deputy
Judge President.
I return later to the other issues recorded in the
email of 26 June 2013 sent to the State Attorney by Motau SC. Jiba
did not seem
to be concerned with the snail pace at which the matter
was being dealt with. This constituted a wanting conduct on her part
which
cumulatively considered with other complaints relating to her
handling of Mdluli case, should justify a removal from a roll of
advocates
Failure
to heed to Motau's advice
[125]
It is advisable for any person who is a party to any legal
proceedings to get someone who would be impartial, objective and

independent to handle a particular litigation, if that affects you
personally. Lawyers do not normally defend themselves in legal

proceedings. They get another lawyer to advise and defend them and
understandably, so. Seeking to defend yourself can cloud and
blur
issues as your own interest is at stake. It is for this reason that I
want to believe that Jiba and her team on 18 June 2013
briefed Motau
SC. It does not happen often that a client will easily litigate
contrary to the advice given by counsel or attorney
on brief. Any
such conduct contrary to the advice would be unprecedented to
constitute a reason for a legal representative on brief
to withdraw.
[126]
Jiba correctly paraphrased the complaint relevant to the topic under
discussion as follows:
"79.3 That I
persisted, despite the advice of Adv. Motau
SC
and his team to the contrary, with filing
a
substantive confirmatory affidavit which was
alleged untenable given the evidence that had been given under -oath
by the second
and third respondents at the
Breytenbach disciplinary inquiry".
[127]
The original draft answering affidavit was provided to Jiba and her
team on 21 June 2013, although Jiba seeks to deny that
it ever came
to her attention until 26 July 2013. It was to be considered and
commented upon. Jiba and her team suggested that
Mrwebi be the one to
depose to the answering affidavit. Motau SC advised against this.
Despite the advice, on 25 June 2013 separated
affidavits were brought
to the attention of Motau SC. On 26 June 2013 Motau SC after having
met with Jiba at an unscheduled meeting
on that day, responded to the
proposed separated affidavits and similarly advised against the move
and suggested that the issue
be discussed during consultation which
was still to be arranged. Instead of consultation, Jiba and her team
decided to instruct
the state attorney to deliver the separated
affidavits, which were served and filed with the Registrar on 4 July
2013 as per instruction
of the prosecuting authority headed by Jiba
at the time.
[128]
To give a proper perspective to the complaint, I can do no better
than to quote the relevant averments in the founding affidavit
and
the answer thereto by Jiba. In the founding affidavit GCB states:
"8.
24.
It appears that the State Attorney who was handling the matter at the
time, Mr Sebelemetsa, was not present at the unscheduled
consultation
of 26 June 2013. In an email dated 3 September 2013, he set out his
chronology of what had transpired. I attached
hereto
as
annexure
"GCB15"
a
copy of that email. In the email he states
that
as a
result of
the fact that by Monday, 24 June
2013, no comments had been received from Jiba and Mrwebi on the
contents of the draft answering
affidavit which Motau SC and his team
had drafted, he (Mr Sebelemetsa) received numerous calls from counsel
as to what they should
do since the affidavit had to be filed by 24
June 2013. Mr Sebelemetsa thereupon enquired from "the client"
and was told that there were many averments Oike the
disclosure of internal memos) in the draft prepared by Motau SC and
his team
with which they did not agree.
I infer that "the
client" is
a
reference to Jiba and Mrwebi. Without
further input from the State
Attorney or counsel, Mr
Sebelemetsa on 2 or 3 July 2013 received
a
"signed copy"
of an
answering affidavit by Mrwebi ,
a
supporting
affidavit by Jiba and
a
confirmatory affidavit by the South
Gauteng Director of Public Prosecutions, Adv Chauke. Mr Sebelemetsa
states in his email that
"..
the mandate from client was
that I must proceed to serve and file the said affidavit".
Again, I assume that this is
a
reference to Jiba and Mrwebi.
On the face of it, both
'
affidavits were commissioned on 2
July 2012 (although the date "2 June 2012" was, I assume,
incorrectly written in handwriting
on the affidavit of Jiba. The date
stamp however confirms that it was commissioned on 2 July 2012). Mr
Sebelementsa then discussed
the matter with Mr Tshivase and was told
to file the affidavit since the time was already up for their filing.
He was also told
to forward copies to counsel. He proceeded to serve
and file same on 4 July 2013. (My emphasis).
[129]
Jiba in her own wisdom decided to respond as follows:
"AD
PARAGRAPH 8.24
160.
I admit that Mr Sebelemetsa was not present at
the "unscheduled consultation". As I pointed out above, I
was at chambers
in connection with an unrelated matter and decided on
the spur of the moment to stop at Adv Motau
SC's
chamers to introduce myself.
161.
As I have also mentioned above the email by Mr
Sebelemetsa dated 3 September 2013 (annexure "GCB15'? was
addressed to the Hodes
SC
team
in order to assist them in preparing an application for condonation.
162.
I deny that the reference to "the client"
should be read
as a
reference
to me personally. never instructed Mr Sebelemetsa personally. All
instructions received from him would have come from
members of the
LAD,usually Adv Chita or Adv Mokhatla. Adv Muller's assumptions are,
with respect, incorrect.
163.
I have dealt with the serving and filing of
the affidavit deposed to myself and by the second respondent and the
reasons therefor,
above."
[130]
Earlier in this judgment I mentioned Jiba's washing of hands in
dealing with the complaints against her. The answer quoted
above is
no different from that attitude.
"All instructions received
from him (referring to state attorney) would have come from members
of the LAD, usually Adv Chita
or Adv Mokhatla",
is intended
to suggest that Jiba instructs or instructed no one, but rather that
LAD does or did. She is again mistaken and this
appears to be once
more an attempt to run away from her responsibilities as the head of
the prosecuting authority, but even most
importantly as an officer of
the court.
[131]
Jiba in her answering affidavit paraphrased in paragraph 124.1.2 of
this judgment, explains how matters against the NPA are
brought to
the attention of the National Director of Public Prosecutions. For
this, it cannot be expected that the instruction
to file one
affidavit by Mrwebi and later separated affidavits contrary to the
advice of Motau SC would have been conveyed to the
state attorney by
LAD without the knowledge and approval of Jiba. In any event, she
should have known on her own initiative taking
into account the fact
she had a red light flickering towards 24 June 2013 since a directive
to this effect was made by the Deputy
Judge President on 5 June 2013.
[132]
There are actually serious worrying features in Jiba's response as
quoted in paragraph 129 above. Clearly, the suggestion
is that she
had no knowledge of the instruction to file separated affidavits.
"/
never instructed Mr Sebe/emetsa personally",
should be seen
in the context of the events preceding the filing and service of the
separated affidavits on 4 July 2013:
132.1
On 24 June 2013, Motau SC out of concern to miss
the deadline set by the Deputy Judge President, made several calls to
Sebelenetsa
(state attorney). Subsequent to this, the state attorney
enquired from 'the client' and was told that there were many
averments
in the draft prepared by Motau SC they did not agree with.
Jiba was proposed by Motau SC to be the deponent to the answering
affidavit.
It is highly unlikely and improbable that LAD, either
through Adv Chita and or Adv. D Mokhatla would receive a draft
answering
affidavit, decide to have it deposed to by Mrwebi against
the advice of Motau SC and then instruct the state attorney to file
and
serve separated affidavits without discussing their strategy with
Jiba. Seen in the context of what is stated in paragraph 124.1.2,
the
state attorney could not have been instructed by LAD to file
separated affidavits without LAD having obtained the go ahead
from
Jiba. For this reason, her attempt to distance herself from the
decision to file separated affidavits is not consistent with
the
conduct befitting an officer of the court.
132.2
In paragraph 102 of the answering affidavit to
these proceedings, Jiba states:
"On 26 June 2013
I happened to be at chambers with Adv Andrew Chauke (Adv Chauke), the
Director of Public Prosecutions for
south Gauteng (and the person who
withdrew the murder charges against Mdluli) for an unrelated matter
and
decided to
stop in to introduce mvself to Adv.
Motau
S
C.
This
was the "unscheduled consultation" referred to in paragraph
8.21 of the founding affidavit. This was however
not
a
full
consultation and the merits of the matter was certainly not
discussed. Adv Motau
SC
did mention that draft answering affidavit has
been sent
and I
informed him that I had not received this a
ffidavit.
He undertook to send same
but I never
received i
t."
133.2.1.
With the greatest respect to Jiba, this is a duck
and dive tactic. Two things had happened before the so-called
"unscheduled
consultation" of 26 June 2013: First, on 24
June 2013 Motau SC contacted the state attorney several times to
enquire about
the draft answering affidavit sent on 21 June 2013. The
response by the NPA regarding the enquiry by the state attorney was
that
"there were many averments (like the
disclosure of internal memos) in the draft prepared by Motau
SC
and his team with which they did not agree".
The correctness of this statement by the
state attorney (Mr Sebelemetsa) as indicated in his email dated 3
September 2013 is not
denied or placed in dispute by Jiba. That being
so, Jiba knew or must have known before 24 June 2013 about the draft
answering
affidavit which was supposed to be deposed to by her. Her
statement: "I had not received this affidavit", suggesting
as on 26 June 2013, cannot be true. As I said, it is highly unlikely
and improbable that Adv Chita and Adv Mokhatla of LAD would
have
expressed a view about
"many averments
... they did not agree with"
without
consultation and approval of Jiba. The suggestion in these
proceedings that she did not receive or was not told about the
draft
answering affidavit by the time she decided to introduce herself to
Adv Motau SC on 26 June 2013 and that therefore she did
not ignore
Motau SC's advice's, cannot be true and is misleading.
134.2.2.
Whilst still on the decision to introduce herself
to Adv Motau, I find it particularly discontenting that instead of
being concerned
about whether the deadline set by the Deputy Judge
President has been adhered to, she was more interested in introducing
herself
to Adv Motau SC. That consultation, should never have been
"unscheduled consultation"; neither should it have been a
brief consultation nor at the spur of the moment consultation. Merits
of the matter should have been discussed in detail. Everything
to the
matter was at stake. There was a deadline of 24 June 2013 already
missed to file an answering affidavit which was set by
the Deputy
Judge President on 5 June 2013. Jiba knew about this because
according to her on 7 June 2013
'due to the
alleged concerns and frustrations expressed with regard to the delays
in filing answering affidavits, a meeting was
held with the state
attorney and after the discussion it was agreed that since Motimele
SC
and his team had
failed to file the answering affidavit within the time periods
required, their mandate should be terminated and
that they should be
replaced' .
This was stated in paragraphs 96
to 97 of Jiba's answering affidavit. With this knowledge and not
having deposed to any affidavit
to meet the deadline set by the
Deputy Judge President, it was incumbent on Jiba to be more concerned
with the deadline than just
introducing herself and then states in
these proceedings:
" This was however not
a full consultation and the merits of the matter
was
certainly not discussed".
134.2.3.
The other thing which had happened before 26 June
2013 was conveyed in the email of 25 June 2013 from the state
attorney. In the
email,
inter alia, was
stated:
"Please
find the draft amended affidavit for your attention. We have
separated the affidavit of Adv Jiba from that of Adv Mrwebt.
134.2.4.
Therefore the statement:
"I
informed him that I had not received it'
in
paragraph 102 of her affidavit referring to the meeting of 26 June
2013 with Motau SC, could only have been a lie. How can the
state
attorney prepare separated affidavits of Jiba and Mrwebi at least on
25 July 2013 without Jiba having been told of the draft
affidavit
prepared and sent by Motau SC on 21 June 2013? The story is
far-fetched and improbable. In other words, Motau SC was
misled too.
This conduct is so serious that Jiba cannot remain on a roll of
advocates. This brings me to the other discontenting
issue.
134.2.5.
The statement:
"he
undertook to send same, but I did not receive it",
referring
to Motau SC and the draft answering affidavit, does not make Jiba's
case any better. In fact it makes it worse. If she
did not receive
it, what did she do? She had then introduced herself to Motau SC. She
therefore had the opportunity to enquire
from Motau SC about the
answering affidavit when she did not allegedly receive it. On the
same date, that is, 26 June 2013, Motau
SC in response to the
proposed separated affidavits as per the email of 25 June 2013
recorded: and I do this at the risk of repetition
and prolonging this
judgment:
"...
This despite
we note that the same outcome is sought to be achieved by dividing
the affidavits as proposed. I do not want us to
waste time in dealing
with this aspect it shall be one of the agenda items to be discussed
at the consultation which is still to
be confirmed. In the meantime,
may we
request that comments and outstanding information be
furnished using our original affidavit. We also request that
a
condonation affidavit be furnished to explain the failure to
comply with the filing period as set out in the directives issued
by the DJP.
Upon receipt of your
comments and the outstanding information using our original draft
affidavit as
a
working
document, we shall set
a
date
and time for
a
consultation
to deal with issues in the following sequence:
1.
Comments to our
original answering affidavit and our reaction thereto,
2.
The permissibility
or otherwise of the proposed splitting of affidavits,
3.
Our comments on the
condonation affidavit to be
prepared by the NPA accounting for
each day that
passes without having filed the answering
affidavit in
terms of the directive,
4.
We propose that
a
period of five hours be set aside for such
a
consultation".
134.2.6.
In dealing with what is stated above which is
quoted in paragraph 8.21 of GCB's founding affidavit, Jiba in one
paragraph stated:
"AD PARAGRAPH
8.21
157.
I have dealt with the unscheduled consultation
above. I reiterate that the merits of the application were not
discussed in any detail
with the Adv. Motau
SC.
It is indeed correct that I advised Adv Motau SC that I had not seen
his draft answering affidavit. As mentioned above, he undertook
to
forward it to me, however I never received it".
134.2.7.
It was not about the brief consultation of 26
June 2013, neither is it about whether merits of the application were
discussed in
any detail. The issue was rather how she dealt with the
information in the email of 25 June 2013 from Motau SC quoted in part
in
paragraph 134.2.5 above. In addition, how she dealt with the draft
answering affidavit after her consultation with Motau SC on 26
June
2013.
134.3
After consultation with Jiba on 26 June 2013,
Motau SC again forwarded to Jiba and Mrwebi the original draft
affidavit and again
advised that the way forward would be a per the
steps outlined in paragraphs 1 to 4 of Adv. Motau SC's email of 26
June 2013 quoted
in paragraph 134.2.5 above. These averments are
contained in paragraph 8.2.2 of the founding affidavit to which Jiba
in these proceedings
responds as follows:
"158. I deny each
and every allegation contained in this paragraph as if specifically
traversed. No such affidavit was ever
sent to me or if it was sent, I
never received it. I wish to state that none of the emails referred
to in the deponent's founding
affidavit were ever sent to my email
address of that of my PA. All were sent to the LAD staff in
particular Adv Chita and Adv Mokhatla
and my PA, Khanya Lamola".
134.3.1.
One is by now accustomed to this kind of
responses by Jiba in these proceedings. But again, she misses the
point and displays conduct
which is not only unbefitting of an
officer of the court, but also not befitting the conduct of a person
holding such high public
position in the prosecuting authority.
134.4
On her own version, on 26 June 2016 without
discussing merits of the application in Mdluli case, she was told of
the draft answering
affidavit which was sent on 21 June 2013. It was
an officer of the court talking to another officer of the court, the
other one
having been briefed to deal with the opposition to an
application against the prosecuting authority which was at the time
headed
by Jiba. Without reverting to Adv Motau SC subsequent to the
meeting of 26 June 2013 and without terminating Motau SC's mandate,

on 2 July 2013 the state attorney received a signed copy of the
answering affidavit by Mrwebi, a signed supporting affidavit by
Jiba
and a confirmatory affidavit by Chauke, (the South Gauteng Director
of Public Prosecutions) with the instruction to proceed
to serve and
file the said affidavits and was also told to forward copies to Motau
SC. The state attorney then proceeded to serve
and file on 4 July
2013. As accustomed to, the response by Jiba to this is: "/
never instructed Mr Sebelemetsa personally".
134.5
It is clear that right at the outset, Jiba and
her team did not like the advice given to them by Motau SC. Otherwise
the separated
affidavits would never have been signed, filed and
served. Jiba knew or must have known that by so doing, she will be
pushing Motau
SC and his team out of the brief. Deposing to the
separated affidavits, filing and serving them contrary to the advice
of counsel
on brief, was in my view, very serious and unprecedented.
If she wanted to rely on people internally, that is, Adv. Chita and
or
Adv. Mokhatla, she should first have withdrawn their instruction
to the state attorney and Motau SC as Jiba and her team decided
to
handle the matter on their own. But instead, she deposed to a
separated affidavit and then caused the instruction to be given
to
the state attorney to serve and file the affidavits without reverting
to Motau SC. This was deliberate and displayed an un-repented
conduct
then and now. She was steadfast to defy logic and advice for as long
as her wishes were not accommodated. That is the kind
of conduct
making Jiba to cease to be a fit and proper person and to remain on a
roll of advocates. The conduct is even more glaringly
displayed when
dealing with the next topic.
Jiba's
failure to heed to the advice of advocate Halgryn SC
[135]
Later in this judgment Iwill deal with Mrwebi's failure to heed to
advocate Halgryn SC's advice from paragraphs 153 to 153.3.1.
The
application in FUL (Mdluli) case before Murphy J was set down for
hearing on 11 and 12 September 2013. On 5 July 2013 Motau
SC and his
team, as one would expect, withdrew as counsel for Jiba and Mrwebi.
On 2 August 2013 a new legal team was briefed namely,
Adv. Leon
Halgryn SC and Adv. Johan Uys (Halgryn SC team). On 6 August 2012
Advocate Eulande Mahlangu was added to Halgryn SC team.
A series of
consultations were held on 5, 6, 7 and 8 August 2013 between the
State Attorney, Jiba and her team. Halgryn SC team
also studied the
case dockets in both the murder and corruption charges. On Friday 10
August 2013, a further consultation took
place between counsel and
Jiba. Following the latter consultation, Halgryn SC team also
withdrew from the brief. This was unprecedented
happening indeed:
135.1
Three teams of counsel on brief in one matter,
all withdrawing within a short space of time one after the other,
was, in my view,
a sign of unwillingness on the part of Jiba not to
let go the decision to withdraw the charges against Mdluli. Halgryn
SC provided
Jiba with a document titled
"Confidential
and privileged memorandum and opinion dated 12 August 2013".
This memorandum was provided to GCB by the
Prosecuting Authority. It must therefore be accepted that
confidentially and privilege
with regard to the document has been
waived.
135.2
In the memorandum, Halgryn SC expressed scathing
criticism of the manner in which the proceedings were conducted to
that date and
stressed the fact that the record filed by Jiba and
Mrwebi did not constitute the record of the proceedings as required
in terms
of Rule 53.
135.3
In a topic headed
"Fundamental
flaws in the prosecution of the matter thus far'',
Halgryn
SC referred to the opposition of the application brought by FUL for
the review and setting aside of Mrwebi's decision to
withdraw the
charges against Mdluili as a
"sinking
ship"
and then in paragraphs 9 and 10 of
his memo advised:
"9.
These flaws
in the prosecution of the matter thus far, (which we had very little
difficulty in uncovering), on behalf of our clients
are fundamental-
so much so- that we are under no doubt that
as
matters now
currently stand our clients
are headed towards
a
certain
judgment against them, with every potential of
irreparable
harm to the credibility and reputation of the National Prosecution
Authority.
10. As the papers
correctly stand there is simply no defence".
135.4
Then in paragraph 51 of the memorandum, Halgryn
SC stated:
"If there is
a
decision to continue with the opposition of
this matter, on the basis of attempting to justify the decisions to
discontinue the
prosecutions, with reference to the records/dockets,
our client will regrettably have to find yet, another team of
counsel to do
so.
We
are unable to do
so.
None
of the reasons advanced thus far makes any rational sense, let alone
establish
a
defence".
135.5
I do not intend to traverse the content of a 21
page memorandum of Halgryn SC. It suffices to mention that anyone who
might have
thought that Jiba will be deterred in her tracks, one
would have been mistaken. Secondly, it suffices to mention that
Halgryn SC's
prediction of the possible scathing criticism by the
court was spot on. For example, Murphy J in his judgment
inter
alia,
stated:
"[24] The reasons
for the various delays, and late filing,
are
sparse and most unconvincing.
However,
in the interests of justice I was persuaded that the matter should
proceed without further delay and condoned the non­
compliance
with the rules and directives of the DJP.
Suffice
to say that the conduct of the respondents is unbecoming of persons
of such high rank in the public service and is especially
worrying in
the case of the NDPP.
a
senior
officer of this court with weighty responsibilities in the proper
administration of justice. The attitude
of the respondents signals
a
troubling
lack of appreciation of the
Constitution ethos and principles underpinning the office they hold".
(The emphasis is mine as was also that of GCB in their
founding affidavit).
135.6
I cannot agree more with the sentiments expressed
by Murphy J both with regards to the delay, incomplete record and
holding steadfast
on the decision to discontinue the prosecution
against Mdluli despite clear
'sinking ship'
and prima facie case in particular regarding
the corruption and fraud charges against Mr Mdluli as indicated
briefly in paragraph
104 of this judgment.
135.7
Jiba was not deterred in her tracks by the
criticism made by her counsel, Adv. Halgryn SC. Instead, Jiba and
Mrwebi insisted in
defending the 'sinking ship' which ultimately
caused Halgryn SC team to withdraw on 12 August 2013. Thereafter yet
another set
of counsel Hodes SC's team was briefed and a belated
attempt was made to file supplementary affidavit. The application was
heard
on 11 September 2013 and judgment was handed down on 23
September 2013. The application by FUL was granted by Murphy J making
a
number of adverse remarks against Jiba including the one quoted in
paragraph 135.5 above.
135.8
Attempts to justify her decision not to heed to
the advice of Halgryn SC, in my view, just makes her situation worse.
In her answering
affidavit to the present proceedings, she seems to
suggest that the assumption by Halgryn SC team that there was a prima
facie
case against Mr Mdluli of fraud and corruption charges was
wrong. In paragraph 112 of her answering affidavit to these
proceedings
she states:
"...
After I
learnt that the charges were withdrawn, I called for
a
briefing
from both the second respondent and Adv Chauke. I was satisfied with
the reasons that were advanced for the withdrawal
of the charges.
With regard to the fraud and corruption charges, it was my
understanding that the case was withdrawn to enable the police to
finalise
the investigations
as
at that time
there was no evidence that linked Mdluli to the offences to which he
was charged.
To me there was nothing untoward about
this".
135.9
For the following reasons such understanding
could never have been honestly and truly made:
135.9.1.
There was everything untoward about the decision
to withdraw the charges. There was a clear prima facie case against
Mdluli in the
corruption and fraud charges.
135.9.2.
Having been briefed by Mrwebi on her request
about the merits or demerits of the decision to withdraw the charges,
she would have
known that Mrwebi, as a special director, was obliged
to take the decision to withdraw the corruption and fraud charges
in
consultation
with Mzinyathi as contemplated
in the Act. I deal with the relevant provisions in some more detail
when I deal with the complaints
against Mrwebi. It suffices for now
to mention that it is striking that Jiba decided to be briefed by
Mrwebi on the corruption
and fraud charges to the exclusion of
Mzinyathi.
135.9.3.
Jiba having called for a meeting with Mrwebi to
be briefed on the withdrawal of the fraud and corruption charges, she
would have
been told that on 8 December 2011 Mzinyathi sent an email
to Mrwebi in which he recorded inter alia:
"Essentially
the aspect I want to discuss is that I do not agree with your
understanding  (as  expressed  in
your
memorandum. that you can instruct prosecutors in the North Gautenq
Division in respect of which I am appointed as the
Director of Public
Prosecutions irrespective of my views on the matter.
As explained above in summarising our meeting of 5
December 2011,
we did not discuss that
you have prepared memorandums (already singed on 4 December 2011) in
which you are giving the said instructions.
Had you mentioned this
aspect. I would have made my objections to your approach during our
meeting
. I am also concerned that you
indicated in your memorandum to me that you will advise the attorneys
of Mr Mdluli of your instructions
that charges will be withdrawn. I
hold the view that such advice to the attorneys would be premature as
I do not share your views/nor
do I support your instructions that the
murder charge be withdrawn". (My emphasis)
135.9.4.
Jiba having consulted and briefed by Mrwebi on
the withdrawal of the charges against Mdluli, would have been told
that the provisional
withdrawal of the fraud and corruption charges
after the meeting of 9 December 2013 between Mrwebi, Mzinyathi and
Breytenmbach
was a damage control compromise as he (Mrwebi), had
already notified Mdluli's lawyers about his decision to discontinue
the prosecution.
I deal with this in some more detail when I deal
with the complaints against Mrwebi.
135.9.5.
In my view, Jiba was steadfast to do everything
in her power to ensure that the charges against Mdluli were
permanently withdrawn.
This was despite the prima facie evidence
against Mdluli and failure to withdraw the fraud and corruption
charges
in consultation
with Mzinyathi. By so doing, was mala fide and displayed ulterior
motive and thus offended against the rule of law and the
Constitution.
She must be found to be no longer fit and proper person
to remain on a roll of advocates. This then brings me to another
complaint
against Jiba.
Jiba's
failure to disclose to the court Brevtenbach's memo and
representations for the internal review of Mrwebi's decision.
[136]
On 12 April 2012 Breytenbach sent a memorandum to Jiba in terms of
which she requested Jiba to review the decision of Mrwebi
to
discontinue the prosecution of Mdluli on the fraud and corruption
charges. The memo was received by Jiba on 13 April 2012. On
2 July
2013 Jiba deposed to an affidavit opposing the application by FUL in
terms of which the decision by Mrwebi was sought to
be reviewed. In
paragraphs 21 to 25 of her answering affidavit in FUL application she
stated:
"21. The
decisions of the third respondent (Mrwebi) and Adv Chauke (the South
Gauteng DPP) on this matter have not been brought
to my office for
consideration in terms of regulatory framework.
22. In the light of
the above I did not take any decision referred to in the applicant's
founding affidavit. In terms of
s
22(2)(b)
of the NPA Act, I may intervene in any prosecution process when
policy directives are not complied with. I may also in
terms of
section 22 (c) of the NPA Act review
a
decision to prosecute or not to prosecute
after consulting the relevant director and after taking
representations of the accused
person
within the time period specified by me, the complainant or any other
party whom I consider to be relevant.
23. At this state
there was no policy contravention and/or representations received by
me to warrant my intervention.
24. …
25. To descend to the
arena without any representations being made to my office would
prejudice the fifth respondent or any other
interested party in this
matter".
136.1
GCB in paragraph 9.19 of its founding affidavit
in these proceedings, inter alia, states:
"It
is difficult to avoid the conclusion that her affidavit was an
attempt by Jiba to deliberately to mislead the court".
I
tend to agree. Jiba probably when she deposed to her affidavit on 2
July 2013 and stated what is quoted in paragraph 136 above,

particularly paragraphs 21, 22 and 25 never thought that one day the
memorandum of Breytenbach will surface in court proceedings.
It is
not her version that she forgot about it when she deposed to her
affidavit on 2 July 2013. Instead, she brings in a very
startling
defence, which in my view, only serves as a trap to herself and
displays her again as an un-repented and dishonest person.
136.2
Her explanation in these proceedings is as
follows:
"135.
I
deny that the memorandum received from Adv Brevtenbach was from a
person or
party that I considered
relevant or was obliged to consider relevant
.
It therefore did not constitute representations from a person
contemplated by
the provisions of section
22(2)(c) of the NPA Act, or at all. It was a document from
a
prosecutor who failed to execute tasks
assigned to her by her superior. Pursuant to the suspension of Adv.
Breytenbach another team
of
prosecutors
was appointed to take the case forward, namely Adv. Becker and Adv
Viljoen. There were memoranda submitted by these
prosecutors in terms
of which the opposite view was expressed. There was similarly no
mention made of this in my affidavit.
I
deny that I was under any obligation to place the content of internal
memoranda received from colleagues before court
.
(My emphasis).
136.2.1.
Jiba is again mistaken. In my view, she was
driven by the desire to bury the charges against Mduli once and for
all. The provisions
of section 22(2)(c) is clear and simple. Jiba
being such an astute lawyer as profiled in paragraph 114.1.1 of this
judgment, could
never have made such a mistake about the
interpretation and application of the provisions of section 22(2)(c)
of the NPA Act. At
the risk of repeating myself, the section reads as
follows:
"22. Powers,
duties and functions of National Director
1.
2. In accordance with
section 179 of the Constitution, the National Director-
(a)...
(b)...
(c) may review
a
decision to prosecute or not to prosecute,
after consulting the relevant Director and after taking presentations
within the period
specified by the
National
Director, of that accused person, the complainant
and
any other person whom the National Director considers to be
relevant
".
136.2.2.
Breytenbach was not only such person who Jiba
should have considered relevant, but was also the person best placed
to provide Jiba
with the relevant information regarding the prima
facie evidence against Mdluli. For example, she was involved in the
prosecution
of Mdluli. On 9 December 2011 she was together with
Mzinyathi when they confronted Mrwebi for having withdrawn the
charges against
Mdluli. On 13 April 2012 by virtue of her having had
access to the contents of the docket, provided Jiba with a detailed
24 page
memorandum setting out her view why Mrwebi's decision ought
to be reviewed in terms of section 22(2)(c) of the Act. Jiba was
therefore
obliged to disclose the memorandum to the court and to
consider the merits of the internal review provided for in section 22
(2)
(c) quoted above. She however, chose to ignore Breytenbach and
her detailed memorandum. I cannot believe that it was because she

felt that Breytenbach was not
'any other
person'
she was obliged to listen to and
consider her memorandum. As I said, her motivation in adopting the
attitude as she did must be
found in her willingness to protect
Mdluli by all means. In so doing she offended against section 179 of
the Constitution and the
rule of law, something which has a direct
relevance to the question whether she should remain on a roll of
advocates. She was occupying
the highest position in the prosecuting
authority by virtue of the fact that she is an admitted advocate on a
roll of advocates.
Her conduct in bringing the image of the
prosecuting authority into disrepute also questions her suitability
to remain on a roll
of advocates.
136.3
Failure by Jiba not to disclose Breytenbach's
memo in the proceedings before Murphy J and failure to consider the
request by Breytenbach
for internal review of Mrwebi's decision was,
in my view, deliberate and was intended to mislead Murphy J.
Jiba's
failure to consider the contradictions in the evidence of Mrwebi
[137]
During April 2012 Breytenbach was charged with misconduct and
suspended by Jiba from work pending finalisation of her disciplinary

enquiry. On 15 May 2012 FUL served on the prosecuting authority an
application to set aside the decisions to withdraw charges against

Mdluli. On 22 and 23 January 2013 Mrwebi and Mzinyathi respectively
testified in the disciplinary enquiry of Bretenbach. On or
about 26
June 2013 Motau SC and his team whilst waiting for the comments of
Jiba and Mrwebi on the draft answering affidavit, received
from NPA
or State Attorney, certain further documentation from the NPA and or
State Attorney including the transcript of Bretenbach's
disciplinary
hearing were received. Upon consideration of such documentation and
the transcript, they noticed a series of contradictions
between the
evidence which had been given on behalf of Jiba in her capacity as
Acting National Director of Public Prosecutions
during Bretenbach's
hearing and the contents of the two draft affidavits prepared by Jiba
and Mrwebi. This information as distilled
from paragraph 8.23 of the
founding affidavit, is dealt with by Jiba in one sentence as follows:
"/
have no direct knowledge of the contents of this
paragraph":
137.1
Jiba cannot claim not to have known of the
contradictions of the evidence adduced during the disciplinary
enquiry and the relevance
thereof to FUL's application and in
particular the validity of the decision to withdraw the fraud and
corruption charges against
Mdluli. She cannot suspend Breytenbach for
misconduct and thereafter pretend like she had nothing to do with
Breytenbach disciplinary
enquiry. Mrwebi in dealing with section 24
(3) of the Act made a concession during cross-examination in the
disciplinary proceedings
of Breytenbach, which unfolded as follows:
"Adv
Trengrove:
No,
you must understand that consult means little bit more than telling
the guy what your views are. Correct?
Adv
Mrwebi
:
Yes you are right, because I consulted with him,
the point is that I
consulted with him.
Adv
Trengrove
:
By telling him what your views were.?
Adv
Mrwebi
:
We did not strictly speaking at first, at first agree,
that's the
point.
Adv
Trengrove
:
By the time you took this decision
...
?
Adv
Mrwebi:
We were not the same m
ind."
137.2
I revert later to the evidence of Mrwebi when I
deal with the complaints against him. I have referred to this
evidence just to show
that when Jiba deposed to her affidavit
opposing the setting aside of the decision of Mrwebi, knew or ought
to have known as put
by Halgryn SC that they were chasing a 'sinking
ship'. The application was clearly unassailable for the following
reason: A Special
Director (Mrwebi) shall exercise the powers, carry
out duties and perform the functions conferred or imposed on or
assigned to
him or her by the President, subject to the directives of
the National Director: Provided that if such powers, duties and
functions
include any of the powers, duties and functions referred in
section 20 (1), they shall be exercised, carried out and performed
in
consultation
with the Director of the area of
jurisdiction concerned as contemplated in suction 24(3) of the Act.
[138]
It is common cause that Mrwebi could only have discontinued the
prosecution of Mdluli on the corruption and fraud charges
in
consultation with Mzinyathi. Idealt earlier in paragraph 135.9.3
above how Mzinyathi reacted angrily to the conduct of Mrwebi.
The
real point for the topic under discussion is that: Jiba on 2 July
2013 when she deposed to her answering affidavit, which affidavit
she
deposed contrary to the advice of her counsel (Motau SC), was aware
that there was no defence to hold on the decision of Mrwebi
regarding
the discontinuance of the prosecution against Mdluli on the fraud and
corruption charges. In this regard her conduct
was wanting and
inconsistent with the conduct of a lawyer who should remain on a roll
of advocates. But Jiba was relentless in
fighting the case brought by
FUL and directly or indirectly dismissed team of advocates one after
the other because she did not
agree with their advices. That was done
irrespective of the merits of the advices. By so doing, she ceased to
be a fit and proper
person to remain on a roll of advocates. I make
the order accordingly later in this judgment.
COMPLAINTS
AGAINST MRWEBI IN MDLULI (FUL)
[139]
Mrwebi in his answering affidavit to the present proceedings
categorises complaints levelled against him as follows:
139.1
That he sought to mislead the court by not
placing before it a proper record of all the documents and facts
relevant for the court
to arrive at a proper decision;
139.2
That he persisted with the aforesaid conduct even
after he had received the memoranda of Motau SC and Halgryn SC;
139.3
That he sought to mislead the court as to the
fact or extent of consultation that allegedly took place between him
and Mzinyathi;
139.4
That he made the decision to withdraw the charges
before he had consulted with Mzinyathi;
139.5
That he persisted with his conduct even after it
had been pointed out to him by both Motau SC and Halgryn SC that his
version was
demonstratively false.
[140]
For the purposes of this judgment, I will not necessarily follow
Mrwebi's categorisation of the complaints aforesaid. I will
however
deal with what Iconsider to be the essence of GCB's complaints
against Mrwebi. In some instances, extensive quotations
of his
evidence in these proceedings, in FUL and disciplinary proceedings of
Breytenbach might be necessary. Some of the complaints
against Mrwebi
have already been dealt with insofar as they overlap with those
against Jiba.
Alleged
mistake on the date Mrwebi took the decision to withdraw the charges
[141]
Just to recap, Mrwebi was a special director appointed in terms of
section 13(1)(c) of the Act, which provides that the President,
after
consultation with the Minister and the National Director - may
appoint one or more Directors of Public Prosecutions, (hereinafter

referred to as Special Directors) to exercise certain powers, carry
out certain duties and perform certain functions conferred
or imposed
on or assigned to him or her by the President by proclamation in the
Gazette. On the other hand, the President shall
as contemplated in
section 13(1)(b) in respect of any Investigating Directorate
established in terms of section ?(IA), appoint
a Director of Public
Prosecutions as head of such an Investigating Directorate established
by the President in the office of the
National Director contemplated
in section 7 to deal with offences or criminal offences or unlawful
activities as set out in the
proclamation issued in the Gazette for
establishment of such Investigating Directorate . Mrwebi at all
material hereto was the
head of the Investigating Directorate and
corruption and fraud charges are offences set out in the proclamation
by the President
as envisaged in section 7(1) of the Act.
141.1
In paragraphs 100 to 107 of this judgment I
referred to the events which preceded the taking of the decision to
discontinue fraud
and corruption charges against Mdluli. On 4
December 2011 not less than two documents were issued under the
signature of Mrwebi.
Firstly, it was a letter addressed to the
Mdluli's lawyers advising them of the withdrawal of the charges.
Secondly, it was a document
titled: "CONSULTATIVE NOTE IN TERMS
OF SECTION 24(3) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998
(NPA) ON REPRESENTATIONS
OF LT. GENERAL MDLULI".
141.2
Mrwebi suggested during the disciplinary
proceedings of Breytenbach, proceedings before Murphy J and in the
present proceedings
that his decision to withdraw the charges was not
taken on 4 December 2011, but rather on 5 December 2011. I have very
serious
problems with this. For the following reasons the decision
must have been taken on 4 December 2011 before Mrwebi met and
allegedly
consulted with Mzinyathi:
142.2.1.
It was common cause that on the morning of 5
December 2011 Mrwebi visited the office of Mzinyathi regarding
representations by Mdluli
for the withdrawal of the charges against
him. Mrwebi in his answering affidavit of 2 July 2013 dealing with
the opposition to
FUL application, and in seeking to explain himself,
stated:
"25. Later the
same day on 5 December 2011 I drafted and directed
a
memorandum to Adv Mzinyathi in which I
recorded some of my views on the matter as well as the fact that I
consulted him as required
by section 24(3) of the NPA Act. The
Regional Head of
SCCU,
Adv
Breytenbach was copied merely for her information. I also directed
correspondences
incorrectly dated 4
December 2011
to Adv Breytenbach in
which I advised of my decision that the matter must be withdrawn. A
further correspondence was directed to
the legal representative of
Fifth Respondent also advising of my decision.
The
date appearing on these documents should be 5 December 2011 not 4
December 2011. This was clearly
a
mistake on mv part."
141.3
For the following reasons Ido not think it was a
mistake:
142.3.1.
Firstly, the alleged mistake is not explained.
There were at least three documents on which the date of 4 December
2011 was indicated.
On each of these documents the date of 4 December
2011 is reflected twice, that is, on the first and last page. The
third document
which I have not mentioned yet, was a covering letter
to the "consultative note". Repetition of the date about
six times,
without more, could not have been a mistake.
142.3.2.
The consultative note and the covering letter to
it, were both addressed to Breytenbach, Mzinyathi being the person
copied. It is
not explained why the two documents dated 4 December
2011 were incorrectly directed to Adv. Breytenbach and incorrectly
copied
to Mzinyathi, particularly that Breytenbach was not part of
consultation between Mrwebi and Mzinyathi on 5 December 2013.
142.3.3.
On the morning of 5 December 2011 Mrwebi went to
Mzinyathi's office to discuss Mdluli matter. Then in his
'consultative note' he
concluded by seeking to explain what had
happened during the discussion as follows:
"Because I
believed that the
/G's
assistance
would serve to address any short comings\defects about the evidence,
I did not during the discussion with the OPP deem
it
necessary
to go into much detail about the merits of the matter although there
was brief reference to the merits during the discussions"
142.3.4.
"IG" is reference to "Inspector
General" in terms of Intelligence Services Oversight Act.
Accepting that this
is·what had happened, there was no need to
take a decision to withdraw the charges immediately after having
deemed it
not 'necessary to go into much
detail about the merits of the matter'
as
that would not have constituted 'in consultation' with Mzinyathi.
142.3.5.
According Mzinyathi, it was Mwrebi who approached
him in his office. He informed him that he (Mrwebi) was dealing with
the representations
in connection with the matter of Mdluli.
Mzinyathi then in paragraph 7 of his confirmatory affidavit dated 10
September 2013 in
FUL case stated:
" ...He further
informed me that he was going to conduct some research on the
Intelligence Serving Oversight. Act, No 40 of
1994. Thereafter he
left my office."
142.3.6.
So, because there was no basis to take the
decision, no such decision could have been taken on 5 December 2011.
It appears from
the quotation above that when Mrwebi approached
Mzinyanthi, he knew that he was going to raise the provisions of the
Intelligence
Services Oversight Act, whilst on the other hand he had
already taken a decision to withdraw the charges against Mdluli. The
contents
of "consultation note" dealing with what Mwerbi
referred to in paragraph 24 of his opposing affidavit in FUL matter,
as
'the views that JG can help in the matter
as he/she has unlimited access to documents and information in
possession of crime intelligence',
in my
view, was a well-planned mission calculated to give Mzinyathi the
impression that a decision to withdraw the corruption and
fraud
charges against Mdluli was not taken when in actual fact that was
fait accompli. I am satisfied that Mwerbi took the decision
before he
met with Mzinyathi on 5 December 2011.
142.3.7.
This is also the understanding of Mzinyathi,
which is articulated as follows in his affidavit to the present
proceedings:
" 71. I need to
emphasise that on 5 December 2011,
we
did not discuss the fact that he had prepared memoranda. nor did he
say he had prepared any. nor did he bring any
along
.
I had no idea that as of the following day, I would suddenly get two
memoranda of the nature that I have indicated herein
above.
I
wish to make in unequivocally clear
that if we had had such a discussion on the 5 December 2011. I would
have raised my objections
to his approach during that very meeting."
(My
emphasis)
.
142.3.8.
Just to conclude on the topic, what is recorded
in the 'consultative note'; in my view, serves to support the
conclusion I have
reached. In paragraph 2 of the 'consultative note'
Mrwebi refers to the representations received from Mdluli and then
ends the
paragraph in the last four lines by stating as follows:
" The purpose of
this document is therefore to deal with
and
record
a
decision
on the matter.
It is the further aim
that
the document shall serve as
a
consultative document with the Director
of Public Prosecutions North Gauteng as required by Section 24(3) of
the NPA Act."
(My emphasis)
142.3.9.
The two underlined sentences cannot go together.
The latter sentence gives the impression that the Mzinyathi (the
Director of Public
Prosecutions North Gauteng) was still to be
consulted on the document, whilst the former announces a decision
already taken by
announcing that the "document is...to deal with
and record a decision on the matter". In my view, it is very
clear from
the quotation above that the document in question could
only have been written before the meeting of the 5 December 2011. The
way
it is coached, speaks to that conclusion. If the document was not
there before he met with Mzinyathi, how 'a consultative document'

which was not in existence could have been used as a
'further
aim that the document shall serve as a consultative document'
.
with Mzinyathi on 5 December 2011? In cross-examination during
Breytenbach disciplinary proceedings, Mrwebi blamed the construction

as quoted in paragraph 141.3.8 above on being an African. The answer
to this effect was preceded by cross-examination of Mrwebi
which
unfolded as follows:
"ADV TRENGROVE:
Can I take you through sentences one by one. You say the purpose of
this document is to deal with and record
a
decision on the matter, Correct?
ADV MWERBI: Yes.
ADV TRENGROVE: So you
had taken your decision by the time you issued this document.
ADV MRWEBI: The
decision, I had taken
a
decision,
I had issued, I have taken
a
decision
by the time I wrote this document.
ADV THENGROVE: But
then you say that the aim of this document is to serve
as
a
consultative document with Advocate
Mzinyathi.
ADV MWERBI: Yes, that
is correct Sir because I did not record, we had
a
verbal meeting with Advocate Mzinyathi, I was
trying to capture the things that we discussed there with Mzinyathi,
that was the
idea of.
..,
that's
what I'm.
..
ADV THENGROVE: I see,
so this is not, not then to serve, because you say, it doesn't say:
"I record, this is to record the
meeting we've already had",
this says: ''This shall serve as
a
consultative document."
ADV MWERBI: As
a
record may be because the point is my
intention Sir, you know you will excuse me, maybe my language is not
very well. I'm an African
Sir, my language is not very good maybe, my
English language is not...
ADV TRENGROVE: Sorry?
ADV MRWEBI: My English
language may not be very good... ADV TRENGROVE: Yes neither is mine.
ADV MWERBI: Yes, but
the point is, is the intention was to record the consultative
discussions that Ihad with Mzinyathi on the
matter".
141.4
With the quotation above, I am even more
convinced that the document was prepared before the meeting of 5
December 2011. How can
Mrwebi use the document as a "consultative
document" with Mzinyathi when he allegedly produced it after he
had consultation
with Mzinyathi. This should find to have constituted
a lie on the part of Mwerbi.
Mrwebi's
failure to disclose 'consultative note' and to despatch a complete
record
[142]
Murphy J in paragraph 41 of his judgment said this concerning Mrwebi:
"Mrwebi
determined to withdraw the fraud and corruption charges against
Mdluli and prepared
a
memorandum
and
a
consultative
note setting out his reasons dated 4 December 2011. Mrwebi did not
disclose these obvious relevant documents as part
of his record of
decision belatedly filed in terms of Rule 53. They came to light
however as annexures to Breytenbach's founding
affidavit in her
application to the Labour Court".
142.1
The quotation above is referred to in paragraph
9.9 of the GCB's founding affidavit in these proceedings. It is one
of the complaints
for the case against Mrwebi. In an answer
specifically to paragraph 9.9 of GCB's founding affidavit, Mrwebi
states:
"116. I have
already dealt with the disclosure of the record in proceedings
involving NPA and reiterate what I have already
stated".
142.2
This statement was preceded by what Mrwebi stated
in the present proceedings as follows:
"15... I must
emphasise that this document was purely an internal memorandum meant
for the attention of the NDP North Gauteng
only and was in no way
meant to be a complete recording of the reasons for the decision in
the matter".
142.2.1.
Mrwebi could never have come to the conclusion
that a document which contains his reasons for the decision would
remain to be
'purely an internal memorandum
meant for the attention of the OPP North Gauteng only'.
Rule
53 {1} (b) is very clear. It required Mrwebi to despatch within 15
days upon receipt of notice of motion to the registrar the
record of
such proceedings sought to be corrected or set aside together with
such reasons as he is by law required to give. So,
in addition to the
record of the proceedings, his consultative note which contained his
reasons should have been filed. The consultative
note did not have to
be a complete record of the reasons for the decision in the matter
before he was obliged to disclose or despatch
it to the registrar as
required by the Rules.
142.2.2.
On 12 August 2013 Halgryn SC provided NDPP with
his memorandum in which inter alia, he recorded:
"21. We have had
regard to 'records' which were indeed filed (which comprise of
a
scant odd 67 pages) and if we compare it to
the actual dockets (each of which comprise of 3 lever arch files
there
seems
to be no
logic behind the filing of the skimpy document
22. It is palpably not
the entire records and our clients are not only going to lose this
case for reasons alone, but in the process
will undoubtedly be the
subject of scathing attacks in open court for failing to provide the
full
records/dockets, let alone be the
subject of
a
highly
critical
judgment in
which this aspect will receive much attention".
142.2.3.
With the critical advice and possible scathing
attacks on the skimpy compliance with the provisions of Rule 53,
Mrwebi cannot hide,
like Jiba attempted to do, behind the fact that
LAD was doing everything and that he was just a by-standing person
having nothing
to do with the case. It was his decision which was
challenged. He is a lawyer, an advocate admitted in 1988. During
June/July 2012
he was informed of the challenges by FUL. He
subsequently consulted with Motimele SC. Then in paragraph 24 of
these proceedings,
he states:
"After the
aforesaid consultation, I
was
never
contacted by any official in regard to the application of FUL until
a
vear later, during July/August 2013 when I was
again requested by the Legal Affairs Division to attend another
consultation with
counsel in Sandton. I duly attended the aforesaid
consultation with Halgryn
SC,
Johan
Uys and Eulande Mahlangu". (my emhasis
142.3
Mrwebi has shot himself in the foot for this
statement. The statement is for the following reasons false:
142.3.1.
On 2 July 2013 Mrwebi deposed to an answering
affidavit in FUL matter. At that time, Motau SC was still on brief
and Halgryn SC
with whom he consulted in August 2013 was not in the
picture yet. The answering affidavit was according to his counsel
finalised
and deposed to on the advice of LAD. If that is so, his
statement,
"After the aforesaid
consultation
, I was
never contacted
by any official in regard to the application
of
FUL until
a
year later. (during July/August
2013
...), referring
to consultation with Motimele SC on 11 June 2012, cannot be correct.
142.3.2.
Between 21 and 25 June 2013 Motau SC by email was
told that only Mrwebi should be deposing to an affidavit as the
decision maker.
When Motau SC did not accede to this, on 25 June 2013
state attorney and Motau SC were provided with separated affidavits
of Mrwebi
and Jiba. On 26 June 2013 Motau SC sent an email to the
State Attorney objecting to the separated affidavits. Subsequent
thereto
separated affidavits were commissioned on 2 July 2013 and
filed on 4 July 2013. Now, Mrwebi wants this court to believe that
all
of this about him, had happened without his knowledge and
approval until he was contacted during 'July/ August 2013' to consult

with Halgryn SC who was briefed on 2 August 2013 and first
consultation with him having taken place only on 5 August 2013. His

version cannot be true.
142.3.3.
Another worrying factor was Mrwebi's suggestion
stated in his affidavit of 2 July 2013 as follows:
"3 Where I make
submissions of
a
legal
nature I do so on the advice of the NPA's legal representative".
142.3.4.
The first question about the statement is which
NPA's legal representative was he referring to? It could not have
been Motau SC
team because his advice was ignored by the NPA and then
Mrwebi and Jiba on their own settled separated affidavits on or
before
25 June 2013 and the instruction to serve and file same must
have been given before the end of June 2013. So, if Mrwebi intended

to suggest that he relied on the advice of NPA's legal representative
referring to Motau SC team he would have been untruthful.
If he
sought to rely on LAD for such an advice, his suggestion that the
last time he had anything to do with FUL application was
2012 and
that he was then contacted to consult with Halgryn SC in July/ August
2013 similarly cannot be correct for the reason
already mentioned
above.
142.3.5.
As I said, Halgryn SC team was briefed on 2
August 2013 and first consultation with him took place on 4 August
2013. So, by the
time Mrwebi deposed to his answering affidavit on 2
July 2013, he had nothing to do with Halgryn SC team, but one thing
for sure
he knew of the draft answering affidavit. First, he proposed
one affidavit by him and later separated affidavits.
142.4
In terms of the statement quoted in paragraph
143.2.3 above, Mrwebi is effectively seeking to suggest that he had
nothing to do
with the defiance of Motau SC's advice. The tactic
adopted by Mrwebi in these proceedings as was the tactic in FULmatter
before
Murphy J, is the same as the adopted by Jiba, i.e. 'the
application was never served on me personally' and as stated in
paragraph
32 of his affidavit in the present proceedings, "did
not know or become aware that the complete record for purposes of
review
had not been disclosed".
143.4.1.
If his statement is true that he never became
aware that the complete record for the purposed of review had not
been discovered
what did he then do after he had become aware of the
critical memorandum of Halgran SC in August 2013? The case was
proceeded with
and finalised before Murphy J. Seeing that it was his
decision which was under attack, he was not expected to play a
passive role.
It was his duty to ensure that there was compliance
with the Rules of court and advice by Halgryn SC. His attempt to
blame LAD
is of no help to his conduct complained of. Failure to
disclose the consultative note and to provide complete record should
be
found to have been deliberate.
Mrwebi's
failure to heed to the understanding he had with Mzinyathi
[144]
According to Mzinyathi, on 5 December 2011 Mrwebi visited his office.
Mrwebi informed him of the representations made by Mdluli
and made
Mzinyathi to believe that the meeting was a way of fulfilling the
requirement for consultation contemplated in the relevant
section 24
(3) of the Act which Mrwebi quoted to Mzinyathi. This version was
never disputed by Mrwebi and therefore he would have
known that
Mzinyathi's attitude was that the decision to withdraw the fraud and
corruption charges against Mdluli can only be taken
if Mzinyathi
agreed thereto.
[145]
The discussion centred around section 7(7) of the Intelligence
Services Oversight Act no. 40 of 1994 as according to Mrwebi,
the
section was critical in dealing with Mdluli's representations. They
then parted on the understanding that Mrwebi was going
to conduct
some research on the regulations applicable to the intelligence
environment in which Mdluli worked. Section 7(7) has
nothing to do
with the prima facie case which was established as contained in the
docket placed before Mrwebi.
[146]
In paragraph 135.9.3 of this judgment I referred to what Mzinyathi 's
reaction was to the decision taken by Mrwebi after the
meeting of 5
December 2011, a version which is not placed in dispute by Mrwebi. To
discuss with a colleague whom you are obliged
in terms of the
legislative framework to consult and agree with; and parted on the
understanding that a decision will not be taken
before a research is
conducted, but, then thereafter took a decision contrary to the
understanding, in my view, can only be ascribed
to as a betrayal and
consultation in bad faith by an officer of the court. This in my view
is so serious that it should justify
a removal from the roll of
advocates.
Mrwebi's
failure to take advice offered by Mzinyathi
[147]
Mzinyathi knew on 6 December 2011 when he received two memorandums
from Mrwebi that the latter has taken a decision to withdraw
the
charges against Mdluli on the corruption and fraud charges. The one
memo was addressed to Mzinyathi and another one to Adv.
Glynis
Breytenbach. The one addressed to Mzinyathi was entitled
"consultative note" in terms of
section 24(3)
of the
National Prosecuting Authority Act, referred
to earlier in this
judgment. The one addressed to Breytenbach was headed "Decision
regarding the representations of Lt. General
Mdluli". In
paragraph 28 of the memorandum addressed to Mzinyathi, Mrwebi stated:
"The prosecutor is accordingly
instructed to withdraw
the charges against both Lt-General Mdluli and Col. Barnard
immediately".
Furthermore, in paragraph 29 of the memo
Mrwebi stated that Lt-General Mdluli's lawyers will be advised
accordingly.
[148]
In the memorandum to Breytenbach, Mrwebi stated:
"I refer to the
attached consultative note in terms of
section 24(3)
of the
National
Prosecuting Authority Act, 32 of 1998
to the Director of Public
Prosecutions, North Gauteng and which was copied to your office. For
reasons stated in the said note,
the charges against Lt-General
Mdluli and Colonel Barnard must be withdrawn
immediately".
[149]
That appeared to have infuriated Mzinyathi terribly. On the morning
of 7 December 2011, Mzinyathi called Mrwebi and requested
to meet
with him during the cause of that day. This was after Mzinyathi had a
meeting with the prosecutors Mr Smith and Breytenbach
that morning.
Mrwebi was apparently in Bloemfontein and then, they agreed to meet
on 9 December 2011.
[150]
On 8 December 2011, Mzinyathi apparently out of anxiety sent an email
to Mrwebi. The relevant portion of the email is quoted
in paragraph
135.9.3 of this judgment. Of importance, it was clearly conveyed to
Mrwebi that he (Mrwebi) cannot instruct prosecutors
in the North
Gauteng Division in respect of which Mzinyathi is appointed as a
Director of Public Prosecutions.
[151]
In the present proceedings, Mrwebi seeks to find an excuse in the
following statement made by him in paragraph 17 of his answering

affidavit:
"17. Even though
the North Gauteng High Court as well as the Supreme Court of Appeal,
subsequently ruled that the phrase "in
consultation with"
as contained in
section 24(3)
of the National Prosecuting Authority
means that there must be concurrence between two functionaries, I was
as at 05 December 2011
of the view that my consultation with Adv
Mzinyathi, such as it was in full compliance with the provisions of
section 24(3) of
the National Prosecuting Act''.
[152]
For the following reasons Mrwebi should be found not to be honest and
candid with this court, as he was also not honest in
the proceedings
before Murphy J.
152.1
Firstly, he was warned in the email of 8 December
2011 that he cannot legally instruct prosecutors in the North Gauteng
Division
without Mzinyathi agreeing thereto;
152.2
Secondly, according to Mzinyathi on the 9
December 2011 when they met with Mrwebi, the latter was told that his
withdrawal of the
charges against Mdluli was contested by both of
them, that is, Mzinyathi and Breytenbach. It has always been
Mzinyathi's contention
that a decision to withdraw the charges could
not be taken without his concurrence. This version by Mzinyathi was
never questioned
by Mrwebi, nor did he at any stage raise it with
Mzinyathi that the latter's concurrence was not required in terms of
section 24(3)
of the Act. Only in these proceedings did Mrwebi plead
as quoted in paragraph 151 above.
152.3
On 22 January 2013 Mrwebi took the witness stand
in the disciplinary proceedings of Breytenbach. Interpretation and
application
of the provisions of section 24(3) featured prominently
particularly under cross­ examination. For its importance, I find
it
necessary to quote the relevant portion of Mrwebi's evidence
during cross-examination:
"ADV
TRENGROVE: Did he agree to stop the prosecution?
ADV
MRWEBI: The decision
was
mine.
ADV
TRENGROVE: Did he agree to stop the prosecution?
ADV
MRWEBI: Okay let's
say
he
did not agree to stop the prosecution.
CHAIRPERSON:
Is that your answer?
ADV
MRWEBI: That is my final answer.
ADV
TRENGROVE: Which means that your decision
was
unlawful,
correct?
ADV
MRWEBI: I did not believe
so,
no.
ADV
TRENGROVE: No there is no doubt about this legal rule.
ADV
MOKHARI: It's
a
legal
argument.
ADV
TRENGROVE: There is no doubt about this legal argument and I
simply
say
to
the witness I agree with you that your view is correct, it accords
with these
cases,
but
let me do it on that basis. You understood the law to be, rightly or
wrongly, that you required substantial agreement on the
exercise of
that power correct? We also know that Mr Mzinyathi did not agree with
you that the prosecution be stopped, correct?
ADV
MRWEBI: Mr Mzinyathi did not wholly agree with me in respect of
issues that I raise.
ADV
TRENGROVE: Mr Mzinyathi did not agree with you that the
prosecution be stopped, correct?
ADV MRWEBI: We left on
the understanding that I am going to take
a
decision.
To me
that's sufficient agreement. We left on the understanding that I will
go and take the decision based on what we have discussed.
To
me that would have
...
ADV
TRENGROVE: Why don't you just answer the question?
ADV
MRWEBI: No, no, no,
there was no
express agreement.
expressly.
expressly. in express terms
ADV
TRENGROVE:
The only view he expressed
was that the prosecution
should
go on?
ADV
MRWEBI:
On the one part.
ADV
TRENGROVE: On that issue?
ADV.
MRWEBI: Yes.
ADV.
TRENGROVE: Yes?
ADV
MRWEBI: Yes.
ADV
TRENGROVE:
On your understanding of the
law thereof your
decision
was unlawfully taken?
ADV
MRWEBI:
I do not think it was sir
.
ADV
TRENGROVE:
Because you did not have
substantial agreement to
stop
the prosecution?
ADV
MRWEBI:
Because sir, I believe I had
substantial agreement
Sir.
ADV
TRENGROVE: You believe you..?
ADV
MRWEBI: I believe I had substantial agreement
ADV
TRENGROVE: I see,
so you believed that
Adv Mzinyathi
substantially
agreed that the prosecution should be stopped
?
ADV
MRWEBI:
Agreed with me. discuss the issue and these are the
issues. then he said he will take the decision
ADV
TRENGROVE: Mr Mrwebi we will submit to the chair that this
evidence is patently, dishonestly given. It can't be
honest.
ADV
MRWEBI: That's your view Sir. I can't stop you from saying that".
152.3.1.
What is quoted in paragraph 152.3 above was
preceded by cross­ examination of Mrwebi during the disciplinary
hearing of Breytenbach
which unfolded as follows:
"ADV
TRENGROVE
:    Was there
anybody else who shared your view? Any lawyer who shared your view?
ADV MRWEBI
:
I do not know, I do not know because I did not consult with anybody
else.
ADV TRENGROVE
:
You don't know because you didn't consult anybody?
ADV MRWEBI
:
I don't know.
ADV TRENGROVE
:
I see. Now by the time you took this decision that the matter be
withdraw, as you said, you did not yet know what Advocate Mzinyathi's

view was, correct?
ADV MRWEBI
:
You know, the simple view of Advocate Mzenyathi was known, I would
say it was known because I, this is what
I
picked up later on you know. because he says he believed there is
a
case. that's his view. that was his
view
. yet I told him the problems
later.
ADV TRENGROVE
:
So at the time you took this decision to the best of your belief
Advocate Mzinyathi was of the view that the prosecution should

continue?
ADV. MRWEBI
:
Not necessarily.
TRENGROVE
:
Yes, but that's what I understand you to say Mrwebi?
ADV MRWEBI
:
Yes, you said there was
...
Yes.
ADV TRENGROVE
:
I beg your pardon?
ADV MRWEBI
:
Well, maybe let's say yes.
ADV MRWEBI
:
Yes, what?
ADV MRWEBI
:
Yes it's what, he wanted the prosecution to continue.
CHAIRPERSON
:
He had that view?
ADV MRWEBI
:
Well, he did not say so. He did not say so.
ADV TRENGROVE
:
But your belief was ...
ADV MRWEBI
:
His view was that you know, on his... In fact he says he did
not get deeper into the matter but on the face of it,
looks like you know we can, there is
a
case,
that was his view".
152.3.2.
Further in cross-examination, his evidence which
preceded also what is quoted in 152.3 above unfolded:
ADV
TRENGROVE
: Did you and he agree to
discontinue the prosecution on that day?
ADV
MRWEBI
: No,
we
agree on the problems. we did not agree to discontinue the
prosecution on that day
.
ADV
TRENGROVE
: You unilaterally decided to
discontinue the prosecution without his agreement, correct?
ADV
MRWEBI
: I think I did so after I
consulted him, as I thought I consulted him I was required.
ADV
TRENGROVE
: Just answer my question.
You unilaterally stopped the prosecution with...
ADV
MRWEBI
: I did not think it was
unilateral Sir.
ADV
TRENGROVE
: You unilaterally stopped
the prosecution without his agreement, correct?
ADV
MRWEBI
: In certain respects, let's say
in certain respects.
ADV
TRENGROVE
: You unilaterally stopped
the prosecution without his agreement to stop the prosecution.
ADV
MRWEBI
: In certain respects.
ADV
TRENGROVE
: In
...
He did not agree to stop the prosecution at
all. Correct?
ADV
MRWEBI
: No, in respect of certain
issues.
ADV
TRENGROVE
: He did not agree to stop
the prosecution at all.
ADV
MRWEBI
: In respect of certain issues.
ADV
TRENGROVE
: What do you mean by that?
ADV
MRWEBI
: He identified, he agreed with
me in terms of the problems that there were that..."
152.3.3.
I agree with the conclusion by Mr Trengrove as in
the quotation under paragraph 152.3 of this judgment. That is,
Mrwebi's evidence
was 'patently, dishonestly given". Mr Mrwebi
seems to have forgotten about the oath which he took as a witness,
but also as
an officer of the court when he was admitted as an
advocate in 1988. He turned himself into an unreliable and dishonest
witness.
Unfortunately that finds its way into the present
proceedings. His statement in paragraph 17 of his answering affidavit
in these
proceedings quoted in paragraph 151 above is not only a lie,
but is intended to mislead this court. He clearly knew long before
he
deposed to his answering affidavit in FUL matter on 2 July 2013 that
his decision would never have been lawful without the agreement,

concurrence or substantial agreement with Mzinyathi. I am not sure if
he thought this court will have no regard to his evidence
adduced
during the disciplinary proceedings of Breytenbach. There cannot be
any excuse for his lies. He should be found to have
ceased to be a
fit and proper person to remain on a roll of advocates. He betrayed
his oath of office as an advocate and in doing
so, also brought the
prosecuting authority into disrepute
Mrwebi's
failure to heed to Hagryn SC's advice
[153]
In paragraphs 135 to 135.9.5 of this judgment I dealt with Jiba's
failure to adhere to Halgryn SC's advice. In some respects
what is
stated therein finds some relevance to the topic under discussion. On
12 August 2013 Halgryn SC provided his written opinion
in which he
clearly pointed out that the decision to withdraw the charges against
Mdluli will not stand in court. Despite the advice,
Mrwebi and Jiba
persisted in seeking to oppose the application brought by FUL. In
paragraph 24 of his answering affidavit in the
present proceedings,
Mrwebi states that he consulted with Halgryn SC in August 2013. Then
in paragraph 25 he concludes by saying:
"After the aforesaid
consultation, I never interacted in any manner whatsoever with
Halgryn SC or any other external legal
practitioner in regard to the
FUL matter":
153.1
Mrwebi cannot wash his hands. First, he is the
person who made the decision which was challenged. Secondly, he knew
of the advice
by Halgryn SC or ought to have known. "
I
never interacted in any manner whatsoever with....or
any
other external legal practitioner
",
confirms that after consultation with Halgryn
SC, he (Mrwebi) interacted with "internal legal practioner/s"
seen in the
light of what follows hereunder. Jiba in her answering
affidavit to the present proceedings puts it this way:
"110. The
approach suggested by Halgryn
SC
team
at the consultation held on 8 August 2013 and prior consultations
made
a
number of
assumptions... His advice was that therefore that I should review the
decision of the second respondent and Adv
Chauke in terms of section 22(2)(c) of the NPA Act and give FUL an
opportunity to amend
their grounds for relief if they still
disagree".
153.2
Then in paragraph 111 of her answering affidavit
in the present proceedings, Jiba says:
"I together with
the NPA team could not agree with Halgran
SC".
153.3
Furthermore, in paragraph 137 of Jiba's answering
affidavit in these proceedings and after having dealt with a range of
oral advices
given by Halgran SC during consultation, she concludes
by saying:
"It was for these
reasons that I was uncomfortable with the oral advice furnished to me
by the Halgryn SC team.
Indeed the
entire team of
representatives
from the NPA disagreed with his advice
.
I therefore requested the Halgryn
SC
team
to prepare
a
written
memorandum of advice.
The
representatives of the NPA then also went away and reconstructed the
respective dockets".
153.3.1.
Clearly none of the above would have happened
without the decision maker's (Mrwebi's) involvement. The point is,
Mrwebi's attempt
to distance himself from the decision to defy
Halgryn SC's advice, smacks him as untruthful and dishonest person in
the handling
of Mdluli case up to the present proceedings. He should
know as a decision maker and a person against whom serious
allegations
are made in the present proceedings, that he ought to
take this court into his confidence than just stating that he never
interacted
with Halgryn SC or any other external legal practitioner'
after consultation with Halgryn SC. The real issue is what he did
with
Halgryn SC's advice. He together with Jiba ignored solid and
right advice given by Halgryn SC. That does not accord with a fit and

proper requirement to remain on a roll of advocates. I now turn to
deal with the other issue.
Mrwebi's
withdrawal of corruption and fraud charges in the face of prima facie
evidence
[154]
There is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, namely the
National
Prosecuting Authority Act. The
prosecuting authority has the power
inter alia, to institute criminal proceedings on behalf of the state
and to carry out any necessary
functions included to incidental to
instituting criminal proceedings (section 179(1) and (2) of the
Constitution).
154.1
Anyone within the prosecuting authority, who
exercises this power, must do so in accordance with the rule of law
and the Constitution.
Short of this, would be in conflict with the
Constitution and the national legislation. Failure to prosecute any
case in the face
of a prima facie evidence would offend against the
law and the Constitution, being the supreme law of the Republic of
South Africa.
154.2
It is not my understanding that Mrwebi suggested
that there was no prima facie case on the corruption and fraud
charges. In his
'consultative note' he expressed himself on the issue
as follows and I do this at the risk of repetition:
"...Essentially
my views related to the process that was followed in dealing with the
matter particularly in view of the fact
that the matter fell squarely
within the mandate of the Inspector-General in terms of
Intelligence
Services Act 40 of 1994
. I noted that it is only the Inspector
General who by law is authorised to have full access to the Crime
Intelligence documents
and information and thus who can give a
complete view of the matter as the investigative can never be
complete without access to
such documents and information. In my
view, the process followed in this matter is possibly illegal as
being in contravention of
the said provisions of the Intelligence
Services Oversight Act 40 of 1994".
[156]
For the following reasons there was no legal basis to come to the
conclusion as quoted above and Mrwebi knew about it:
156.1
If the concern expressed above was genuine,
instead of withdrawing the charges, Mrwebi could have allowed the
prosecution team and
the investigating officer to resort to
utilisation of the provisions of section 205 of the Criminal
Procedure Act, which allows
the Director of Public Prosecutions or a
'public prosecutor authorised thereto in writing, to request a judge
of a High Court,
a regional court magistrate or a magistrate subject
to the provisions of subsection (4) and section 15 of the Regulation
12 Interception
of Communicative and Provisions of Communication -
related Information Act 2002, to require the attendance before him or
her or
any other Judge, regional court magistrate or magistrate for
examination by the Director of Public Prosecutions or the public
prosecutor
authorised thereto in writing, of person who is likely to
give material or relevant information as to any alleged offence.
156.1.1.
Therefore, Mrwebi could have advised the
investigating and prosecution team in the matter to resort to section
205 of Act 51 of
1977 in order
'to have full
access to...documents and information'
and to
subpoena whoever
'can give
a
complete view of the matter'
by
submitting documents and information during the proceedings in terms
of section 205.
156.2
It looks like the raising of the Intelligence
Services Oversight Act was just a shield behind the real intention of
Mrwebi, the
intention being the withdrawal the charges despite prima
facie case against Mdluli and with or without the concurrence of
Mzinyathi.
156.3
Before Mzinyathi and Breytenbach met with Mrwebi
on 9 December 2011, together with a member of the South African
Police Services
met with Inspector General of Intelligence's legal
advisor, Ms Joy Governder who expressed the view that Inspector
General of Intelligence
(IGI) does not investigate criminal offences
as such investigations are within the domain of the SAPS.
[157]
On 19 March 2012 IGI ambassador, Adv FD Radebe prepared a memo which
memo was later forwarded by Lt. Gen. Dramat to Jiba and
Mrwebi on 23
March 2012. In the memo addressed to Lt. Gen, NS Mkhwanazi, Acting
National Commissioner of Police at the time, it
was recorded:
"1. We refer to
your letter of the 2Z'd February 2012 wherein you requested an
opinion on the reasons advanced by the National
Prosecuting Authority
for the withdrawal of the criminal charges against General Mdlu/i.
2. In response to the
memorandum of Adv. Mrwebi of the 4 December 2011 we advise as
follows:
2.1 The Inspector-
General of Intelligence (/GI) derives her mandate from the
Constitution of the Republic of South Africa, which
provides for the
monitoring of the intelligence oversight which much result in
a
report containing findings
and
recommendations;
2.2 Any investigation
conducted by the Inspector-General is for the purposes of
intelligence oversight which must result in
a
report containing findings and
recommendations;
2.3 The mandate of the
/GI does not extend to criminal investigations which are court driven
and neither can /GI assist the police
in conducting criminal
investigations. The mandate of criminal investigations rests solely
with the police;
As such we are of the
opinion the reasons advanced by the NPA in support of the withdrawal
of the criminal charges are inaccurate
and legally flawed. We
therefore recommend that this matter be referred back to the NPA for
the institution of the criminal charges".
[158]
How Mrwebi could have missed this simple mandate of IGI is mind
boggling. His intention, in my view, was to withdraw the charges

against Mdluli and never to reinstate them. The following facts seem
to support the conclusion: The memorandum quoted above was
brought to
the attention of Mrwebi by Breytenbach in the company of Adv
Ferreira. Mrwebi in paragraph 21 of his answering affidavit
deposed
to on 2 July 2013 in the FUL matter, stated:
"...
The document
from the IGI in the last paragraph thereof contained a recommendation
that this matter must be referred back to the
NPA for the
investigation of criminal charges".
[159]
Then in paragraph 32 of the answering affidavit of 2 July 2013,
Mrwebi introduced a revealing shift from his initial basic
reason for
the withdrawal of charges against Mdluli, and by so doing exposed
himself in bad light. He stated inter alia:
"Later on 30
March 2012 I addressed to General Dramat,
advising of the fact
that any decision to instruct the withdrawal of the charges still
stands and that the matter is closed
..." (My emphasis)
159.1
The statement above is in direct contrast to what
Mrwebi said in the preceding paragraph 24 of his affidavit deposed to
on 2 July
2013 wherein he stated:
"On 5 December
2011 I met Adv Mzinyathi, the OPP of Gauteng North to discuss the
Mdluli matter. In the light of the views I
held about the matter that
the IG would not only help with access to documents and information
as well as the fact that she/he
would also
assist
with the issue of privilege my view as conveyed to the DPP related to
the process that was followed by the police in dealing
with the
matter as well as the view that, in the nature of the matter, the IG
can help in the matter as she/he has unlimited access
to documents
and information in possession of crime intelligence. Because I
believe that the IG's assistance would serve to address
any
shortcomings or defects about the evidence ...
"
159.1.1.
A turn around on the statement quoted above is
sought to be explained further in the same paragraph 32 of the
answering affidavit
of 2 July 2013 as follows:
"I want to
clarify that I wrote in the fashion I did (referring to 'the
withdrawal of the charges still stands and the matter
is closed’),
I did because since our agreement with the OPP, North Gauteng and
Adv. Breytenbach on 9
December 2011
nothing, as far as I was aware changed in terms of the status of the
investigation in the matter, no new information
was presented on
which the earlier decision could be reconsidered and accordingly in
my view what was the point of keeping the
matter open in the books of
NPA, hence my statement that 'the matter is closed'. This statement
does not however, mean that should
new evidence come to light it may
be reopened and dealt
with
according law".
[160]
"I wrote in the fashion I did..:: Mrwebi was referring to
"the withdrawal of the charges still stands and the matter is

closed."
Mrwebi was dishonest and sought to mislead the
court in FUL matter. First, the charges were not withdrawn because
there was lack
of evidence. The brief summary of evidence in
paragraph 104 above is quite clear that there was
prima facie
evidence upon which
to proceed on the fraud and corruption
charges about Mdluli. That was also the views of Mzinyathi to which
Mrwebi conceded during
the disciplinary hearing of Breytenbach.
Secondly, the "consultative note" containing the reasons
for the withdrawal
of the charges focused on the views of the
Inspector General. Lastly, the discussion of 9 December 2011 came
after the horse had
bolted because Mdluli's lawyers were already
informed that the charges against Mdluil would be withdrawn.
160.1
Mzinyathi explained it on 23 January 2013 as
follows during his cross­ examination in the disciplinary
proceedings against Breytenbach:
"
ADV
TRENGROVE
:
So,
by the time he met with you on the 9th
December he said he was functus officio,
correct?
ADV MZINYATHI: Yes
ADV TRENGROVE
:
And we all know that
functus officio means
that I have taken any decision and I no longer have power to reopen
it, correct?
ADV TRENGROVE
:
So that presented you with a fait accompli, the horse bolted, the
case will have to be withdrawn;
ADV MZINYATHI
:
Indeed.
ADV TRENGROVE
:
And it was in the light of that fait accompli that you then had your
discussion as to what now, correct?
ADV MZINYATHI
:
Yes.
ADV TRENGROVE
:
And I understand your evidence that you felt, and I'm told that
Advocate Breytenbach agreed with you, whether she said so or not,

that you did not want the spectacle of a public clash between various
affidavits of the NPA, correct?
ADV MZINYATHI
:
Yes.
[161]
So, the provisional withdrawal as agreed on 9 December 2011 had
context and the context was not that there was insufficient
evidence
to prosecute Mdluli on the fraud and corruption charges. Refusing to
reinstate the charges after the Intelligence had
cleared the way for
Mrwebi, bearing in mind that, that was his initial main concern, in
my view, displayed how Mrwebi was determined
to flout the rule of law
and the Constitution by discontinuing the prosecution against Mdluli
in the face prima facie evidence
and in contravention of the
provisions of section 24 (3) of the Act, that is, without concurring
with Mzinyathi.
Insistence
on 'in consultation' with Mzinyathi
[162]
On 9 September 2013, that is, few days before the hearing of FUL
application which was scheduled for 11 September 2013, Mrwebi

delivered supplementary answering affidavit in an attempt to respond
to FUL replying affidavit in which retired Judge Kriegler
stated:
"83. The second
is that Advocate Mrwebi still seeks to sit on two stools: whereas his
cotemporaneous actions and documents
clearly point to withdrawal of
charges, i.e. an unequivocal withdrawal of proceedings against
General Mdlu/i, he subsequently sought
-
and
still seeks
-
to
suggest
a
"provisional"
withdrawal.
84. The third is that
Advocate Mrwebi still persists in generalising when seeking to
justify his criticism of the case against the
General and his
disagreement with the Specialised Commercial Crimes Court prosecutor
who had worked up the case with senior investigators
and the
prosecutor's two experienced supervisors, Advocates Brytenbach and
Mzinyathi.
85. Then, when the
Inspector General of Intelligence ("the IGl'J (the fourth
respondent) intimated that Advocate Mrwebi was
quite wrong in seeking
to involve her office instead of the Police, he doggedly adhered to
the manifestly position he had adopted
from the outset".
[163]
Icannot agree more with the criticism. The 'fourth respondent' was
with reference to the Inspector General of Intelligence.
Mrwebi in
seeking to tackle the criticism as he should, in my view, made his
position worse by responding as follows:
"AD PARAGRAPHS 83
TO 85
23. The allegations
herein are denied. The Applicant has not made any basis for its
bold
allegation
that I had made the decision to cease the prosecution
of the firth respondent.
24. I took the
decision to withdraw the criminal case in consultation with Adv.
Breytenbach and Mzinyathi
..."
[164]
There was no 'bold allegation' about it. In the preceding paragraphs,
I particularly dealt with the concession and at times
serious
contradictions made by Mrwebi at every corner regarding the
withdrawal of the charges against Mdluli on the corruption
and fraud
charges. He clearly discontinued the prosecution
by all means in the face of a clear prima facie evidence and without
concurring
with Mzinyathi.
[165]
But what has really brought down Mrwebi in the quotation above, is
his alleged in
consultation
with Mzinyathi. For the first time since his decision on 4 December
2011, did he use the words 'in consultation' with Mzinyathi.
By 9
September 2013 when he deposed to the supplementary affidavit in
Mdluli/FUL case he had already conceded on 22 January 2013
during the
disciplinary hearing against Breytenbach that he single-handedly took
the decision to withdraw the charges against Mdluli.
He later in the
disciplinary proceedings moved to 'substantial agreement' with
Mzinyathi, something branded by Advocate Trengrove
SC as evidence
which was 'patently, dishonestly given'.
[166]
In paragraph 37 of his supplementary affidavit deposed to on 9
September 2013, he persisted with the evidence 'patently, dishonestly

given' as follows:
"...
The
decision to withdraw charges was taken
in
consultation
with Advocate Mzinyathi".
166.1
Mrwebi clearly has made himself liable to cease
to be a fit and proper person to remain on a roll of advocates.
Concluding
words on Mrwebi and Jiba
[167]
I cannot believe that two officers of the court (advocates) who hold
such high positions in the prosecuting authority will
stoop so low
for the protection and defence of one individual who had been
implicated in serious offences.
[168]
In fact, taking into account the kind of personality (referring to
Mdluli), Mrwebi and Jiba had to deal with, they should
have stood
firm and vigorous on the ground by persisting to prosecute Mdluli on
fraud and corruption charges. By their conduct,
they did not only
bring the prosecuting authority and the legal profession into
disrepute, but have also brought the good office
of the President of
the Republic of South Africa into disrepute by failing to prosecute
Mdluli who inappropriately suggested that
he was capable of assisting
the President of the country to win the party presidential election
in Mangaung during 2011 should
the charges be dropped against him.
[169]
It is this kind of behaviour that diminishes the image of our country
and its institutions which are meant to be impartial,
independent and
transparent in the exercise of their legislative public powers.
Retired Judge Johan Kriegler in his replying affidavit
in FUL review
proceedings had the occasion to put it this way:
"128. In serious
matter of public interest, an accountable and transparent organ of
state has a responsibility to keep the
public informed and to make
full and frank
disclosure in order to
refute, explain or ameliorate dangerous allegations..."
169.1
POCA as a national legislation was introduced in our country and in
its preamble, a concern is raised of the ineffectiveness
of the
ordinary laws of the country to deal with the surge of crimes like
corruption and fraud. The Prosecuting Authority Act makes
a provision
for the establishment of the Investigating Directorate and special
Director, (who was Mrwebi at all material times
hereto) within the
prosecuting authority, to deal with the surge of crimes like
corruption and fraud, the mandate being to effectively
investigate
and prosecute these offences without fear, favour and prejudice.
[170]
Mzinyathi, Breytenbach and other prosecuting officials who were
involved in the investigation of charges against and prosecution
of
Mdluli, were like foot soldiers in a war­ zoned area crying loud
for the freedom and space to declare war and to fight against
serious
crimes that are crippling our country and threating investment. Jiba
on the other hand, was like a commander-in-chief and
in charge
required to lead by example. But instead, she flouted every rule in
the fight against crime. Her failure to intervene
when she was
required to do so, has failed the citizens of this country and in the
process, brought the image of the legal profession
and prosecuting
authority into disrepute. Both Mrwebi and Jiba should be found to
have ceased to be fit and proper persons to remain
on a roll of
advocates.
COMPLAINTS
AGAINST MZINYATHI
[171]
GCB's complaint against Mzinyathi arose from his confirmatory
affidavit deposed to on 10 September 2013. This was a confirmatory

affidavit to Mrwebi's supplementary answering affidavit deposed to on
9 September 2013. Murphy J in his judgment in FUL matter
handed down
on 28 September 2013 inter alia, criticised Mzinyathi as follows:
"[52] Mrwebi in
his answering affidavit did not deal with Mzinyathi's testimony at
the disciplinary enquiry or for that matter
with any of the averments
in the supplementary
affidavit. His
account of the events between 5 December 2011 and 9 December 2011
takes the form of
a
general
narrative which does not admit or deny the specific
allegations in the supplementary founding
affidavit. He nonetheless maintained that he had consulted Mzinyathi.
The answering affidavit
was not accompanied by
a
confirmatory affidavit from Mzinyathi who
therefore initially did not confirm Mrwebi's
general account.
In
his confirmatory affidavit filed at the 111
hour
the day before the
hearing
without any explanatory whatsoever for it being filed 6 months after
the delivery of the supplementary founding affidavit,
Mzinyathi
differing from his evidence at the hearing. confirmed the a/legations
in Mrwebi's
affidavit as they
relate to herein thus saving in effect for the first time that he had
indeed concurred in the decision.
[53] Mzinyathi
elaborated further in ragraph 7 to 9 of the affidavit that Mrwebi
approached him at his office on 5 December 2011,
told him that he was
dealing with representations regarding Mdluli and needed to consult
him. Mrwebi mentioned to him that he was
busy researching the
Intelligence SeNices Oversight Act and then left his office. The
impression created as mentioned earlier is
that no substantive
discussions took place that day and hence clearly there was
concurrence before Mrwebi wrote the consultative
note and
communicated with Mdluli's attorneys. Later Mzinyathi heard from
Smith that Mrwebi had instructed the prosecutor to withdraw
the
charges. He then wrote the e-mail of B December 2011 to Mrwebi and
met him on 9 December 2011 together with Breytenbach. At
the meeting
he was persuaded that the matter was not ripe for trial and agreed to
the provisional withdrawal of the charges.
This
differs materially from his original position that he was unable to
influence the decision because it has been
finally taken
. but conceded to the
characterization of the withdrawal as provisional as
a
compromise partially addressing his concerns.
[54] Taking into
account of how it was placed before the court by Mzinyathi after
FUL's heads of argument were filed, without explanation
for its
lateness, and its inconsistency with his testimony at the
disciplinary hearing that he was presented with
a
fail accompli
and
was unable to influence the decision because Mrwebi claimed to be
functus officio. this evidence of the
OPP of North Gauteng to the effect
that he ultimately concurred. must
regrettably be rejected as creditworthy.  The affidavit is
a
belated transparent and unconvincing
attempt to rewrite the script
to avoid
the charges of unlawfulness. The version in the supplementary
founding affidavit, originally uncontested by Mzinyathi and

corroborated by Mzinyathi's testimony at the disciplinary hearing,
must be preferred and accepted as the truth".
[171]
In the present proceedings Mzinyathi deals with these criticisms and
explains himself extensively in more than twenty page
affidavit made
out of several paragraphs. I do not intend to deal with his responses
in detail. Mzinyathi in paragraph 13 of his
confirmatory affidavit
deposed to on 10 September 2013 stated:
"I
have read the answering affidavit of Mrwebi and the first respondent
and confirm the allegations made therein in so far
as they relate to
me".
[172]
It is this statement that brought Mzinyathi in the firing line with
Murphy J. This court now has the benefit of hearing Mzinyathi
on the
remarks made against him. I must
immediately
point out that I have not been able to find in Mzinyathi's
confirmatory affidavit that at the meeting of 9 December
2011
'he
was persuaded that the matter was not ripe for trial and agree to the
provisional withdrawal of the charges'.
What
I read in his confirmatory affidavit of 10 September 2013 is that he
'...initially disagreed with Adv Mrwebi's
decision
that the
matter should be withdrawn'.
The
'not
ripe for trial'
statement in paragraph 10 of
Mzinyathi confirmatory affidavit cannot be attributable to him as his
statement, but rather that of
Mrwebi and it reads:
"The
other issue which
he raised was that
the investigation were
incomplete
and the matter was not ripe for trial
.
After extensive discussions we agreed that the matter should be
withdrawn provisionally so that the investigating officers can
work
with the office of the Inspector General of Intelligence to conduct
further investigations. Adv. Mrwebi informed Adv. Breytenbach
that
once the investigations were completed she could re-enroll the matter
for trial",
something which Mrwebi
refused to do after the Inspector General advised that
'the
matter be referred to the NPA for the institution of the criminal
charges'
afresh against Mdluli as quoted in
paragraph 157 of this judgment. What is clear from what was stated in
paragraph 10 of Mzinyathi's
confirmatory affidavit is that
"not
ripe for trial' ,
was a statement made by
Mrwebi to Mzinyathi and Mzinyathi did not own the statement in his
confirmatory affidavit. The agreement
of 9 December 2013 to
provisionally withdraw the fraud and corruption charges against
Mdluli has context which is briefly referred
to hereunder:
177.1
The statement quoted in paragraph 171 above was
preceded in particular by paragraphs 7 to 9 in which Mzinyathi
recorded:
"7. On 5 December
2011, Adv, Lawrence Mrwebi approached my office and informed me that
he was dealing with representations
in connection with the matter of
the Fifth Respondent, and that he needed to consult with me in this
regard, He further informed
me that he was going to conduct some
research on the Intelligence Services Oversight Act No 40 1994.
Thereafter he left my office.
8. Later I received a
copy of a letter from the prosecutor, Adv. Smith in which Adv. Mrwebi
instructed the prosecutor to withdraw
charges against the Fifth
Respondent. In response to the said instruction I wrote an email to
Adv. Mrwebi in which I requested
a meeting with him to discuss the
matter.
9. On 9 December 2011,
I and Adv. Breytenbach held a meeting with Adv.Mrwebi in his office,
Z'd Floor, VGM Building 123 West Lake
Avenue, Weavind Park in
Silverton, the NPA Head Office. During our meeting, I initially
disagreed with Adv Mrwebi decision that
the matter
should
be
withdrawn."
[173]
What is quoted above should be seen in the context of the email of 8
December 2011 quoted in part in paragraph 153.9.3 of
this judgment,
which email Mzinyathi sent to Mrwebi before their meeting of 9
December 2011. This email is also mentioned by Mzinyathi
in the
present proceedings. Mzinyathi in my view should be commended for
standing firm against Mrwebi's withdrawal of the charges
against
Mdluli. His evidence during Breytenbach's disciplinary proceedings
part of which is quoted in paragraph 160 above was consistent
with
his stand point about what had transpired on 5, 8 and 9 December
2011. That coupled with his detailed answering affidavit
in the
present proceedings tackling the adverse remarks made against him as
quoted in paragraph 169 of this judgment, should bring
the complaints
against Mzinyathi to rest. Murphy J did not have the benefit of the
detailed response which has now been placed
before this court by
Mzinyathi. The agreement on 9 December 2011 as indicated in paragraph
10 of Mzinyathi's confirmatory affidavit
deposed to on 10 September
2013 to have the charges 'withdrawn provisionally' against Mdluli was
not inconsistent with what Mzinyathi
said during the disciplinary
proceedings of Breytenbach as quoted in paragraph 160 of this
judgment.
[174]
GBC seems to have been mindful of the insufficient information
against Mzinyathi to justify any of the reliefs sought. For
example,
in paragraph 20 of its founding affidavit, it states:
"Jiba and Mrwebi,
in particular
.
appear to be entirely indifferent to the demands of the advocates
profession and high standard required of them as officers of
the
court. They have fallen well short of their high duty to the court,
which requires absolute honesty and integrity. The affidavits
deposed
by Jiba and Mrwebi in the FUL matter evince an attempt to mislead the
court, at best and, indeed, appear to have been untruthful
in
material respects". (my emphasis).
[175]
Mzinyathi in my view, was consistent throughout. His confirmatory
statement quoted in paragraph 171 above has to be considered
in the
light of what is stated in paragraph 173, all of which speak to the
contextualisation of the statement in paragraphs 1O
and 13 of his
confirmatory affidavit. It is for this reason, amongst others, that
this court did not deem it necessary for Mzinyathi
to address the
court in the present proceedings, neither did GCB insist to proceed
against Mzinyathi after counsel for GCB was
requested to indicate
whether GCB still persists with its application against Mzinyathi.
COSTS
[176]
Mzinyathi should be found to have substantially succeeded in his
opposition for the relief sought by GCB. For this reason
he should be
entitled to costs up to the stage when counsel for GCB indicated that
the latter will not persist with its relief
against Mzinyathi.
Similarly, GCB should be found to have substantially succeeded
arising from my findings with regard to Jiba
and Mrwebi conduct in
their handling of Mdluli case.
[177]
An order is hereby made as follows:
177.1
The case against Mzinyathi (third respondent) is
hereby dismissed with costs, such costs to include the costs of two
counsel up
to the stage when the applicant (GCB) indicated that it
will not persist against the third respondent.
177.2
The application against Jiba (first respondent)
and Mrwebi (second respondent) with regard to their handling of
Mdluli's (FUL) case
is hereby granted and an order is hereby made as
follows:
177.2.1.
The names of Ms Nomgcobo Jiba (first respondent)
and Mr Lawrence Sithembiso Mrwebi (second respondent) are hereby
struck from the
roll of advocates;
177.2.2.
The first and second respondents to pay the costs
of the application the one paying the other to be absolved and such
costs to include
the costs of two counsel.
_________________________
M
F LEGODI
JUDGE
OF THE HIGH COURT
I
agree
_________________________
W.
HUGHES
JUDGE
OF THE HIGH COURT
For
the Applicant:
Adv S Burger SC
Adv N Mayosi
Instructed
by:

Bernard Van Der Hoven Attorneys
For
the 1
st
Respondent       Adv
N Arendse SC
Adv S Fergus
Instructed
by:

Majavu Incorporated
For
the 2"d Respondent     Adv RPA Ramawele
Adv
k Magano
Instructed
by Attorneys:      AM Vilakazi Tau Attorneys
For
the 3
rd
Respondent:     Adv DB
Ntsebeza
Adv SX Mapoma
Instructed
by:

Magaga Incorporated
[1]
M slabbert, Professor Department of Juris prudence, University of
South Africa (Slabbm @ Unisa.ac.).
[2]
Du Plessis, " The ideal legal practitioner" (from academic
angle) 1981 De Rebus at 424-427.
[3]
2014(4) SA 298 SCA.
[4]
Malan and Another v The Law Society, Northern Provinces 2009 (ALL)
SA 133 (SCA) para [7].
[5]
Section 2 of Act no 32 of 1998, s 179 (1) of the Constitution 108 of
1996.
[6]
S 179 (2) of Constitution
[7]
s 179 (4).
[8]
S 179 (5) (b) (c) and (d).
[9]
S 20 (1) (a) and (c) of Act 32 of 1998.
[10]
s 22 (2) {c) Act 32 of 1998.
[11]
Sections 22 to 25 of Act 1998.
[12]
S 24 (3) of the Act.
[13]
See Democratic Alliance v President of the Republic of South Africa
and Others (17782/15)2016 ZAWCHC66 (23 May 2016) at Para
40
[14]
James Brown v Hamer (Pty) Ltd (Previously named Gilbert Haner &
Co Ltd v Simmons No
1963 (4) SA 656
A at 660 D-H
[15]
Tranvaal Racing club v Jockey Club of South Africa
1958 (3) SA 599
(W); Dawood v Mahamed 1979 (2) SA 361 (D).
[16]
Thint (Pty) Ltd v National Director of Public Prosecution &
Others
2009 (1) SA 1CC
para 64.
[17]
Democratic Alliance V President of the Republic of South Africa &
Others 2013(1) SA 248 (CC) at [26]
[18]
Minister of Police & Another V Du Plessis
2014 (1) SACR 217
(SCA) at [31]
[19]
S v F
1989 (1) SA 460
(ZH), S v Bester 1971 (4) SA 281 (T)
[20]
Commentary on the Criminal Procedure Act by Du Tiet, De Jager,
Paizes, Skeen and Van Der Merwe at 1-29.
[21]
Mitchell V Attorney-General , Natal 1992 (2) SACR 68 (N)
[22]
Section 2(4) of POCA
[23]
Paragraph (e) and (f) of the section 2(1) of POCA.
[24]
See section 2 (2) of POCA
[25]
See definition under Section 1of POCA
[26]
2012(3) SA 486 (SCA) at para 33
[27]
2014(4) ALL SA 35 SCA at para 22
[28]
See the quotation in paragraph 85above (in particular 244 of
answering affidavit).
[29]
National Director of Public prosecutions and other V freedom Under
Law
2014 (4) SA 298
SCA
[30]
Section 21(3) of the Act
[31]
Democratic Alliance v The Acting National Director of Public
Prosecutions (288/11) [2012) ZASCA (20 March
2012); 2012 (3) SA 486
SCA.