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[2018] ZASCA 103
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Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103; [2018] 3 All SA 622 (SCA); 2019 (1) SA 130 (SCA); 2019 (1) SACR 154 (SCA) (10 July 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 141/17 and 180/17
In
the matter between:
NOMGCOBO
JIBA
FIRST
APPELLANT
LAWRENCE
SITHEMBISO
MRWEBI
SECOND
APPELLANT
and
THE GENERAL
COUNCIL OF
THE BAR OF SOUTH
AFRICA
FIRST
RESPONDENT
SIBONGILE
MZINYATHI
SECOND
RESPONDENT
and in the matter
between:
LAWRENCE
SITHEMBISO
MRWEBI
APPELLANT
and
THE GENERAL
COUNCIL OF
THE BAR OF SOUTH
AFRICA
RESPONDENT
Neutral
citation:
Jiba
& another v The General Council of the Bar of South Africa and
Mrwebi v The General Council of the Bar of South Africa
(141/17
and 180/17)
[2018] ZASCA 103
(10 July 2018)
Coram:
Shongwe
ADP, Leach, Seriti, Van der Merwe and Mocumie JJA
Heard:
22
March 2018
Delivered:
10
July 2018
Summary:
Advocate
– misconduct – whether fit and proper person to practise
as an advocate – appellants not advocates in
private practice –
employed by the National Prosecuting Authority – alleged to be
not fit and proper persons to remain
on the roll of advocates while
acting as litigants – found not to have benefitted –
appeal upheld.
ORDER
On appeal from:
Gauteng Division,
Pretoria (Legodi and Hughes JJ sitting as court of first instance):
1 The appeal is
upheld with no order as to costs.
2 The counter-appeal
is dismissed with costs including the costs of two counsel.
3 Paragraph 177.1 of
the order of the court a quo is confirmed.
4 Paragraph 177.2.1
and 177.2.2 are set aside and replaced with the following:
‘
The
application for the striking off the roll of Ms Jiba and Mr Mrwebi is
dismissed with no order as to costs, however as regards
Mr Mrwebi he
is suspended as an advocate for a period of six months from the date
of this order (15 September 2016).’
JUDGMENT
Shongwe
ADP (Seriti and Mocumie JJA concurring)
Introduction
[1]
The General Council of the Bar (GCB), a voluntary association with
legal personality in terms of its constitution, brought an
application in terms of s 7(1)(
d
)
of the Admission of Advocates Act 74 of 1964 (the Act) to strike from
the roll of advocates, alternatively to suspend officials
of the
National Prosecuting Authority (NPA) in April 2015. These officials
are Ms Nomgcobo Jiba (Jiba), who held the position of
Deputy National
Director of Public Prosecutions (DNDPP); Mr Lawrence Sithembiso
Mrwebi (Mrwebi), who held the position of Special
Director of Public
Prosecutions and head of the Specialised Commercial Crime Unit (SCCU)
and Sibongile Mzinyathi (Mzinyathi) who
held the position of Director
of Public Prosecutions in North Gauteng. (For ease of reference and
without disrespecting them, I
shall refer to all parties by their
surnames.)
[2]
This appeal is against the order of the Gauteng Division, Pretoria
(Legodi and Hughes JJ), striking from the roll of advocates,
the
names of Jiba and Mrwebi with costs including the costs of two
counsel, the one paying the other to be absolved. The application
against Mzinyathi was dismissed with costs to include the costs of
two counsel. Against the order of costs, the GCB filed a
counter-appeal.
The appeals are with the leave of the court a quo.
The three applications were dealt with in one hearing and were
therefore heard
together in this court as the factual and legal
background was similar.
[3]
The appointment of members of the NPA is in terms of s 179 of the
Constitution read with s 11 of the National Prosecuting Authority
Act
32 of 1998 (the NPA Act). The NPA Act provides for the members of the
NPA to be appropriately qualified and to possess legal
qualifications
that would entitle him or her to practise in all courts in the
Republic (s 9(1) of the NPA Act). The GCB has the
authority to apply
to court for suspension of its members as advocates from practice and
the removal of their names from the roll
of advocates in terms of s
7(1)(
d
)
of the Act.
[4] Only a court has
the authority to strike a name from the roll of advocates or
attorneys. In this case the GCB amassed information
from various
sources and public records, for instance from judgments handed down
from various courts such as
Freedom Under Law v National Director
of Public Prosecutions & others
2014 (1) SA 254
(GNP);
National Director of Public Prosecutions & others v Freedom
Under Law
2014 (4) SA 298
(SCA);
[2014] ZASCA 58
; and
Zuma v
Democratic Alliance & others
[2014] ZASCA 101
;
[2014] 4 All
SA 35
(SCA). And also sourced information contained in the affidavits
in the various cases and from the office of the NPA. The gist of
the
information gathered sought to prove that the appellants (Jiba and
Mrwebi) were not fit and proper persons to remain admitted
as
advocates.
Legal Framework
[5] I now turn to
deal with the relevant legal principles to be considered before an
advocate can be struck from the roll. The application
is brought in
terms of s 7(1) of the Act – and it reads as follows:
‘
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–
(
d
)
if the court is satisfied that he is not a fit and proper person to
continue to practise as an advocate . . . .’
[6] This court in
Jasat v Natal Law Society
2000 (3) SA 44
(SCA) ([2000]
2 All
SA 310
(A) placed the following guidelines which were followed with
approval in
Malan & another v Law Society of the Northern
Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 4:
‘
First,
the court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities, which
is a factual
inquiry.
Second,
it must consider whether the person concerned “in the
discretion of the Court” is not a fit and proper person
to
continue to practise. This involves a weighing up of the conduct
complained of against the conduct expected of an attorney and,
to
this extent, is a value judgment.
And
third, the court must inquire whether in all the circumstances the
person in question is to be removed from the roll of attorneys
or
whether an order of suspension from practice would suffice.’
The principles that
apply in striking off an attorney from the roll also apply where an
advocate is concerned. It is common cause
that these proceedings are
not ordinary civil litigation proceedings but are said to be
sui
generis
in nature. The GCB as
custos morum
of the
profession acts in the interest of the profession, the court and the
general public. The GCB’s role is to present
evidence of the
alleged misconduct to court, and for the court to exercise its
disciplinary powers. On the other hand the practitioner
is expected
to proffer an acceptable explanation to gainsay the allegations. The
nature of the proceedings is not subject to the
strict rules that
govern ordinary civil proceedings. (See
General Council of the Bar
of South Africa v Matthys
2002 (5) SA 1
(E) para 4 and
Society
of Advocates of South Africa (Witswatersrand Division) v Edeling
1998 (2) SA 852
(W) at 859l et seq.)
Facts
[7]
The genesis and the long history of this appeal arose after a certain
Lieutenant-General Richard Mdluli (Mdluli), the head of
Crime
Intelligence within the South African Police Service (SAPS) had been
charged with fraud, corruption and related charges and
also with
murder and attempted murder. The fraud and corruption charges were
subsequently withdrawn by Mrwebi and later Advocate
Chauke, the
Director of Public Prosecutions (DPP) South Gauteng, also withdrew
the murder and related charges against Mdluli. Unhappy
about the
withdrawal of these charges, Freedom Under Law (FUL), a non-profit
organisation recognised to be acting in the public
interest in terms
of s 38 of the Constitution, launched review proceedings to have the
withdrawals set aside. It is significant
to mention that Jiba was
appointed DNDPP with effect from 22 December 2010 when the GCB
launched the application for her to be
struck from the roll of
advocates. She had been acting as the NDPP after the position became
vacant when Advocate Simelane was
removed as NDPP. The context of her
involvement in this office vis-à-vis the grounds on which she
is accused of not being
a fit and proper person is important in the
proper consideration of the adjudication of this matter.
[8] Several
complaints were raised by FUL against Jiba, Mrwebi and Mzinyathi
during the hearing of the review proceedings. For example
that,
through their conduct, they delayed and frustrated the prosecution of
the review proceedings by failing to file a record
of decision in
terms of rule 53 of the Uniform Rules of Court. (I shall revert to
this complaint later in the judgment.) For now,
it suffices to say
that it is one of the reasons put forward by the GCB to show that the
appellants were not fit and proper persons.
The other complaint by
FUL was that the delay to file a record of decision prolonged the
review proceedings which resulted in the
late filing of the
appellants’ answering affidavits in the review proceedings. The
Deputy Judge President of the Gauteng
Division, Pretoria (DJP) had to
intervene, by directing the appellants to file their answering
affidavit by 24 June 2013, which
was eventually filed nine days
later. This delay resulted in Murphy J, who presided in the review
proceedings, to remark that the
reasons advanced for the various
delays, and late filing were sparse and mostly unconvincing. This was
also raised by the GCB as
an indicator of them being unfit persons to
remain on the roll of advocates. However Murphy J condoned the
non-compliance with
the rules and directives of the DJP. I now turn
to deal with the complaints against Jiba and Mrwebi which according
to the GCB
justify declaring them to be not fit and proper persons to
remain on the roll of advocates.
Complaints
against Jiba
[9]
Initially Jiba raised certain points in limine, that she had not been
afforded a proper hearing and the issue of separation
of powers. She
argued that the GCB should have held an enquiry before approaching a
court of law, as is usually done where a practising
advocate is
charged with misconduct. These points were not pursued on appeal,
therefore there is no need to decide them. I now
turn to deal with
the specific complaints levelled against Jiba.
[10]
The first complaint dealt with by the court a quo was in connection
with
Booysen’s
case. In that case Jiba, in her capacity as acting NDPP issued two
authorisation letters charging Major General Johan Wessel Booysen
with the contravention of s 2(1)(
e
)
and (
f
)
of the Prevention of Organised Crime Act 121 of 1998 (POCA). In a
nutshell Booysen alleged that Jiba was ‘mendacious’
when
she asserted that she considered statements together with other
information in the docket before she took the decision to
charge him.
This allegation was further exacerbated by the negative remarks of
Gorven J who presided in the
Booysen
matter when he drew an inference that none of the information upon
which Jiba relied linked Booysen to the offence in question.
The
court a quo found that ‘[i]t suffices for now to conclude on
[the]
Booysen
matter by stating that no case has been made for removal or
suspension from the roll of advocates’. I do not find it
necessary
to deal with the detail of the complaint in view of the
finding of the court a quo. I share the sentiment expressed. Before
us
counsel for the GCB dealt with some of the complaints but, in my
considered view did not take the matter any further. The court
a quo
could not find ‘any mala fides and or ulterior motive in the
authorisation by Jiba as contemplated in POCA’.
[11]
The next complaint against Jiba was in connection with a challenge on
review by the Democratic Alliance (DA), a political party,
against
the decision of the NPA in which the then acting NDPP, Advocate
Mokotedi Mpshe, withdrew corruption charges against the
former
President Jacob Zuma. The withdrawal came after Adv Mpshe had
listened to a recorded conversation on tape between
the former NDPP
(Mr Bulelani Ngcuka) and the then DPP for Durban (Mr McCarthy). The
complaint was in connection with Jiba’s
handling of this matter
in her capacity as acting NDPP. This case popularly became known as
the ‘spy tapes case’. The
specific complaint was that
Jiba failed to comply with the requirements of rule 53 of the Uniform
Rules which require the disclosure
of the record of proceedings under
review. As a result the DA approached the high court, Pretoria
seeking an order to compel the
NPA to comply with the rule. The
application was dismissed, subsequently the DA appealed to this
court. The appeal was upheld and
certain orders were made which the
NPA failed to comply with. As a result certain negative remarks were
made by this court. Such
remarks and failure to comply with the court
order were advanced as reasons why Jiba was not fit and proper to
remain on the roll
of advocates. Because of the findings of the court
a quo, which I agree with, it will not be necessary to deal with
specifics,
save to add that the court a quo concluded that the GCB
failed to show any
mala
fides
on
Jiba’s part or that she was motivated by an ulterior motive.
(See the judgment of the court a quo reported as
General
Council of the Bar of South Africa v Jiba
2017
(2) SA 122
(GP).)
[12]
The main reason, in the court a quo’s view, why Jiba and Mrwebi
were found to be not fit and proper persons to remain
on the roll of
advocates was their handling of the so called Mdluli case. It is
significant to note that the court a quo started
by describing who
Mdluli was and detailed his personality, characterised him in an
egregious manner as if he was already convicted
of the allegations
against him. This characterisation, in my view, negatively influenced
the court a quo’s evaluation of
the manner in which Jiba and
Mrwebi handled the Mdluli case. The relevance of which is not clearly
explained. The court a quo,
in its judgment, referred to a letter by
Mdluli to former President Zuma, the Minister of Safety and Security
and the Commissioner
of Police, which stated that the charges brought
against him were a conspiracy. I was unable to glean the relevance of
quoting
from the said letter. In my view the content of the letter
was far-fetched and did not establish whether Jiba was a fit and
proper
person to practise as an advocate.
[13]
The specific complaints were: (a) that she failed to file a full
complete rule 53 record even after a court order to that effect;
(b)
that she failed to file an answering affidavit after the DJP had
directed her to do so and that she did not file her heads
of argument
timeously; (c) that her reason for the delays were sparse and
unconvincing; (d) that her conduct as a person of high
rank in the
public service was unbecoming; (e) that she failed to disclose that
she had received a 24 page memorandum from Advocate
Breytenbach and
that she deliberately attempted to mislead the court with reference
to the memorandum; (f) that this court had
criticised her conduct in
the handling of the Mdluli matter; and (g) that she failed to make a
full and frank disclosure to refute,
explain or ameliorate the
serious allegations against her.
[14]
It is significant to consider these complaints together with Jiba’s
answers and explanation in the context of her position
as acting NDPP
and the fact that she is cited herein as a litigant. Jiba was not
acting as counsel representing a client. She acted
as head of the
NPA, therefore the State Attorney and counsel had to be appointed to
represent her. In her answering affidavit she
explained the policy
applicable where an official had been cited in his or her
representative capacity. She further explained that
the Legal Affairs
Division (LAD) tasked with the handling of all matters pertaining to
civil litigation dealt with this matter.
The LAD was headed by
Advocate Nomvula Mokhatla the Deputy National Director of Public
Prosecutions. In her team, were deputy directors,
senior State
advocates and senior State prosecutors. This team would prepare a
memorandum on steps to be taken, arrange consultations
with her and
advise on how the LAD would handle the matter further. Counsel would
be briefed by the State Attorney. She further
explained that the LAD
is similar to ‘an in-house legal department . . . ’.
[15]
Jiba’s explanation to counter the complaint that she failed to
file a full and complete rule 53 record was that Advocate
Motimele SC
and Advocate Notshe SC had been briefed to advise on the preparation
of the rule 53 record. It was prepared by Advocate
Chita on behalf of
the NPA on the advice of the Motimele SC team. This was done after
Advocate Chita had consulted with Mrwebi
and Advocate Chauke whose
impugned decisions were to be reviewed. Her conduct must be viewed
and equated to an attorney and client
relationship to her advisors.
She is a trained lawyer, however her opinion would be secondary to
that of counsel and the LAD. She
cannot, in my considered view be
said to be not a fit and proper person simply because she was advised
otherwise. It must be considered
that she did not benefit in any
manner whatsoever from providing an incomplete rule 53 record, nor
did she act dishonestly. In
para 24 of Murphy J’s judgment he
condoned the non-compliance with the rules and directives of the DJP.
To me this is an
indication that no prejudice was caused to any
party. We preside in matters daily where attorneys and counsel take
incorrect decisions
or instructions, and also file court processes
out of time, however, they apply for condonation; and in most cases
such would be
granted if no prejudice would result. The legal
practitioners in these instances are not necessarily unfit persons to
practise
as advocates or attorneys in so doing.
[16]
The complaint that she failed to disclose the memorandum from
Advocate Breytenbach and thereby deliberately attempted to mislead
the court, was explained as follows. It must be clear from the onset
that this was a confidential internal memorandum prepared
by Advocate
Breytenbach to Jiba expressing a different view to the impugned
decision by Mrwebi. The court a quo concluded in para
136.3 that
‘[f]ailure 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’. It
was not Murphy J who said that Jiba attempted to mislead the court.
It was the court a quo’s
conclusion on the reasons set out
above. The truth of the matter is that when Murphy J heard the review
proceedings, the Breytenbach
memo had already been in the public
domain at the labour court when Breytenbach was fighting against her
suspension. It cannot,
therefore be fair, to accuse Jiba of failing
to disclose the Breytenbach memo before Murphy J. Jiba cannot, fairly
be accused or
alleged not to be a fit and proper person for failing
to consider the request by Breytenbach for the internal review of
Mrwebi’s
decision. Surely Jiba should be entitled to her own
opinion based on facts at her disposal. She should not be punished
for differing
with Breytenbach. Murphy J went further to say that
‘The NDPP in her answering affidavit, though not dealing
directly with
the [Breytenbach] memo, maintained that the decision to
withdraw charges had not come to her office for consideration “in
terms of the regulatory framework”’.
[17]
The next complaint arose from a meeting between Jiba and Advocate
Motau SC, who had been briefed after Motimele SC’s
team
withdrew on 26 July 2013, in an unscheduled consultation. She is
reported to have said that she had not received the answering
affidavit settled by Advocate Motau SC. Whereas Advocate Sebelemetsa
of the State Attorney’s office had written to Advocate
Motau
SC’s team advising them that the draft answering affidavit had
been amended by separating Jiba’s from that of
Mrwebi. Advocate
Sebelemetsa also wrote a memo on 3 September 2013 advising that they
‘never had any consultation with the
team [i e Advocate Motau
SC] in preparation of the said affidavit’. The court a quo
concluded that Jiba ‘was steadfast
to defy logic and advice
[from Advocate Motau SC] 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 the roll of advocates’.
Therefore the court a quo was
of the view that Jiba lied when she
told Advocate Motau SC that she had not received the affidavit. In my
view it is not the only
reasonable inference to be drawn. As
explained above, the State Attorney would liaise with the LAD and
deal with issues and correspondence
without necessarily informing
Jiba. All that needed to happen was to have Mrwebi sign the affidavit
and that Jiba sign a supporting
affidavit. The explanation could be
that Jiba’s team was of the view that the impugned decision in
the Mdluli matter was
that of Mrwebi. The signed affidavit was
received by Advocate Motau SC. The difference of opinion between
Advocate Sebelemetsa
on the second and third of
July
2013 long after the unscheduled consultation with Motau SC and Jiba’s
team and the inference drawn by the court a quo,
in my considered
view, would not justify labelling Jiba a dishonest person and
consequently not fit and proper to remain on the
roll of advocates.
As a result of this misunderstanding Advocate Motau SC and his team
withdrew from the matter.
[18] Advocate
Halgryn SC was briefed after the withdrawal of Advocate Motau SC.
After several consultations Advocate Halgryn was
in disagreement with
the manner in which the case had been conducted. He was of the view
that from the papers there was no defence.
Jiba responded to Halgryn
SC’s team by saying that ‘it assumed that there was a
prima facie
case against Mdluli of fraud and corruption which
had to be enrolled and prosecuted . . . it assumed that the decision
of Adv Chauke
not to proceed with the other charges while he had
referred the matter to a formal inquest was incorrect . . . it
assumed that
I [Jiba] had stood back and did nothing since the
withdrawal of the charges’. She further explained that the
fraud and corruption
charges against Mdluli were withdrawn for
purposes of further investigation and that the intention was to
reinstate these charges
if further incriminating evidence came to
hand. The difference of opinion should not and cannot fairly be
considered sufficient
to conclude that Jiba is not a fit and proper
person to remain on the roll of advocates. Perhaps one may infer some
form of incompetence
with regard to her duties, which may be a ground
to remove her from being the DNDPP but not sufficient enough to be
removed from
the roll of advocates. Jiba also referred, in her
answering affidavit, to the view of two senior State prosecutors who
also handled
this matter, namely Advocate Andre Becker and Advocate
Rita Viljoen who expressed the view that there was insufficient
evidence
to prosecute Mdluli on the fraud and corruption charges. It
follows therefore that the GCB failed to establish any misconduct
against
Jiba. Therefore the first jurisdictional requirement was
lacking. In the circumstances of this case there is no need to deal
with
a value judgment to determine whether Jiba is a fit and proper
person to remain on the roll of advocates. Therefore even the
sanction
imposed of striking her name from the roll does not arise.
The court a quo materially misdirected itself when it came to the
conclusion
that the decision is one no reasonable court could make.
Complaint against
Mrwebi
[19]
The main complaint against Mrwebi was that he sought to mislead the
court on the extent of the consultation or ‘in consultation’
between himself and Mzinyathi. Put differently that he took a
decision to withdraw the fraud and corruption charges against Mdluli
before he consulted with Mzinyathi in terms of s 24(3) of the NPA
Act. It is alleged further that Mrwebi persisted with this conduct
even after having been advised by Motau SC and Halgryn SC that he was
wrong. The other complaints were that he sought to mislead
the court
by not providing a proper record of all the documents and facts
relevant for the proper determination of the FUL review
proceedings.
Some of the answers and explanations given by Jiba relating to the
rule 53 record are relevant and applicable to the
case of Mrwebi and
may be properly considered herein.
[20]
What weighs heavily against Mrwebi are the answers and explanations
proffered by him against these allegations. Mrwebi received
representations from Mdluli regarding the fraud and corruption
charges. He apparently decided to withdraw and discontinue the
prosecution of Mdluli before discussing with Mzinyathi or ‘in
consultation’ with Mzinyathi as required by s 24(3) of
the NPA
Act. It is apparent that Mrwebi furnished contradictory explanations
of when and why he decided to withdraw the charges
against Mdluli. It
is clear from Mzinyathi’s confirmatory affidavit that he
contradicted Mrwebi’s assertions that there
was any form of
consultation on 5 December 2011 when the two met and discussed the
Mdluli matter. At some point while discussing
this matter Mrwebi
created the impression that the decision to discontinue the
prosecution fell squarely within the mandate of
the Inspector General
of Intelligence (IGI) in terms of the Intelligence Services Oversight
Act 40 of 1994. Murphy J found that
‘[i]t is common cause that
Mrwebi did not consult the SAPS or the IGI prior to withdrawing the
charges, and that Mzinyathi
and Breytenbach informed Mrwebi at the
meeting with him on 9 December 2011 that the IGI was not authorised
to conduct criminal
investigations’. The IGI, indeed, confirmed
that ‘[t]he mandate of the IGI does not extend to criminal
investigations
which are court driven and neither can the IGI assist
the Police in conducting criminal investigations’.
[21] It is highly
possible that Mrwebi, genuinely, did not comprehend what the concept
‘in consultation’ meant, however
the concessions he made
under cross examination by counsel for the GCB, indicated that he was
at most confused. I would not classify
his explanations as dishonest.
However I am prepared to find that the GCB succeeded in establishing
the alleged offending conduct
on a preponderance of probabilities.
Because there was no personal gain from Mrwebi’s conduct, I do
not think that the sanction
handed down is justified. The purpose of
these proceedings is to uphold the rules regulating the profession
and not to punish the
wrongdoer. (See
Society of Advocates of
South Africa (Witwatersrand Division) v Cigler
1976 (4) SA 350
(T) at 357 G-H.)
Complaints
against Mzinyathi
[22]
Murphy J made some negative remarks against Mzinyathi suggesting that
the confirmatory affidavit of Mzinyathi differed from
his evidence
tendered at the disciplinary hearing of Breytenbach. The GCB
interpreted this supposed contradiction as misconduct,
hence it was
of the view that Mzinyathi was not a fit and proper person. The court
a quo placed the misunderstanding by Murphy
J into perspective and
contextualised it. It came to the conclusion that Mzinyathi, should
be commended for standing firm against
Mrwebi’s withdrawal of
the charges against Mdluli. His evidence during Breytenbach’s
disciplinary proceedings was consistent
with his stand point
surrounding what transpired on the fifth, eighth and ninth of
December 2011. The court a quo, correctly so
in my view, dismissed
the complaint against Mzinyathi with costs, up to the stage when the
GCB indicated that it will not persist
against Mzinyathi.
[23]
The GCB was granted leave to appeal the costs order against it in
favour of Mzinyathi. The GCB contended that it acted reasonably
and
in the interest of its members and the public at large when it
brought the application against Mzinyathi. It further contended
that
Mzinyathi together with Jiba and Mrwebi had been criticised by not
only the high court (Murphy J) but also by this court.
Finally it
averred that the normal rules of costs in adversarial proceedings
should find no application.
[24]
On the other hand, counsel for Mzinyathi contended that the general
principle with regard to costs is that the court exercises
its
discretion and that the successful party should, as a general rule,
have his or her costs. (See
Ferreira
v Levin NO & others; Vryenhoek & others v Powell NO &
others
[1996] ZACC 27
;
1996
(2) SA 621
(CC) para 3.) He argued that the fact that the GCB was the
custos
morum
should not insulate it from paying costs and that no special
treatment should be given to the GCB.
[25] I am unable to
find any reason that demonstrates that the court a quo did not
exercise its discretion honestly and judiciously.
Therefore this
court is not empowered to interfere with the findings of the court a
quo. The only recognisable basis is possibly
that the GCB acted as a
custos morum
. However, s 9(1) of the Constitution provides
that everyone is equal before the law and has the right to equal
protection and benefit
of the law. (See
Biowatch Trust v Registrar
Genetic Resources & others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).) I am unable to provide a cogent
reason as to why Mzinyathi should be out of pocket when the GCB
dragged him to court without
sound and reasonable grounds for doing
so. The GCB should at least, have withdrawn the application to strike
Mzinyathi’s
name from the roll of advocates, immediately after
the filing of his answering affidavit in this matter. The court a quo
was able
to identify the misunderstanding Murphy J was labouring
under and the explanation given by Mzinyathi. The GCB recklessly, if
not
irresponsibly, continued to implicate Mzinyathi in a matter where
he had no involvement without verifying the allegations. The only
matter wherein Mzinyathi filed a confirmatory affidavit was the FUL
matter; he was not involved in the so-called ‘spy tapes’
investigation and the
Booysen
case. The GCB did not even
explain its insistence in its replying affidavit. Counsel for
Mzinyathi elaborated at length on the
various instances where the GCB
unreasonably continued to implicate Mzinyathi in its heads of
argument. Due to the view I take
on the issue of costs, it is not
necessary to exhaust the list. The counter-appeal stands to be
dismissed with costs.
Appropriate
sanction
[26] A court of
appeal is entitled to interfere with the exercise by the court a quo
of its discretion if it is satisfied that it
did not bring an
unbiased judgment to bear on the issues before it, or exercised its
discretion upon a wrong principle and or as
a result of a material
misdirection. (See
Kekana v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 654E-H and 655G and
Vassen v Law Society
of the Cape of Good Hope
[1998] ZASCA 47
;
1998 (4) SA 532
(SCA) at 537; also
reported at
[1998] ZASCA 47
;
[1998] 3 All SA 358
(A).) Stated differently, but to the
same effect, in
Fine v Society of Advocates of South Africa
(Witwatersrand Division)
1983 (4) SA 488
(A) at 494H –
495A, the court remarked that:
‘
[T]he
Appeal Court will only interfere with the exercise of this discretion
on the grounds of material misdirection or irregularity,
or because
the decision is one no reasonable Court could make.’
[27]
As regards Mrwebi, I am of the considered view that the court a quo
treated him harshly. Mrwebi, notwithstanding his misconduct,
did not
personally gain anything from his actions. His failure to comprehend
the concept of ‘in consultation’, in my
view should
perhaps be attributed to his incompetence or naivety rather than his
honesty and lack thereof. I recognise the principle
that the main
consideration is the protection of the public and not to punish. In
my view the court a quo over-emphasised the nature
and personality of
Mdluli, his past misdemeanours or alleged criminal activities and
found it abhorrent that Mrwebi had withdrawn
the fraud and corruption
charges against him. Although it later transpired that the charges
were not finally withdrawn, it was
a provisional withdrawal. The
approach of the court a quo did not only close its reasoning but
ultimately led it to commit material
misdirections by finding that
Mrwebi had committed misconduct arising from allegations irrelevant
to his case. The withdrawal of
charges against Mdluli became the
centrepiece of the inquiry, whereas the handling and conduct of the
administrative procedures
and negative remarks by the judges a quo
were indeed the cause for the complaint. The court a quo, in my view,
did not bring its
unbiased judgment to bear.
[28]
The GCB alleged that Mrwebi sought to mislead the court by not
placing before it a proper record of all the documents. That
Mrwebi
sought to mislead the court as to the date of the consultation with
Mzinyathi, whether it was the fourth or fifth of December
2011. All
these complaints collectively or individually cannot justify the
striking off the roll of advocates. These are common
mistakes which
counsel make in their daily work and are mostly excusable. Moreover
Mrwebi was not acting for a client but was a
litigant advised by the
LAD and counsel. Nowhere in the judgment of the court a quo was it
shown that the court considered a suspension
instead of the ultimate
penalty of striking an advocate off the roll and reasons why a
suspension was not an appropriate sanction.
I am of the view that
considering all the facts and circumstances of this case a suspension
of Mrwebi as an advocate would be the
appropriate sanction. I am
alive to the fact that a court of appeal’s interference with
the trial court’s discretion
is permissible on restricted
grounds. The basis of my interference is grounded on my findings that
the court a quo did not bring
its unbiased judgment to bear on the
question before it, and materially misdirected itself. (See
Benson
v SA Mutual Life Assurance Society
1986
(1) SA 776
(A) at 781I-782A.)
[29]
In conclusion, as regards Jiba, the evidence presented by the GCB
juxtaposed with the explanation proffered by her failed to
establish
the alleged offending conduct on a preponderance of probabilities. On
that ground the appeal must succeed. It becomes
unnecessary to
consider the discretion of the court on the question whether or not
she is a fit and proper person to remain on
the roll of advocates. As
regard Mrwebi, I am satisfied that the alleged offending misconduct
has been established and also concur
that the court a quo exercised
its discretion judicially when it concluded that he is not a fit and
proper person to practise as
an advocate, however, misdirected itself
regarding the appropriate sanction to be imposed. Based on the reason
given above, this
is a case where the court a quo should have
suspended Mrwebi, more especially, that he did not personally benefit
from his misconduct
nor did he prejudice any client. All that the
court a quo was dissatisfied with was that ‘[b]y 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’. Surely this is irrelevant and cannot be a
good reason singularly or cumulatively to remove an advocate
from the
roll.
[30]
We have had cases in this court against advocates who had admitted to
unlawfully enriching themselves of millions of rands,
who in the
result have been either suspended or ordered to repay the spoils (see
General
Council of the Bar of South Africa v Geach & others; Pillay &
others v Pretoria Society of Advocates & another;
Bezuidenhout v
Pretoria Society of Advocates
[2012]
ZASCA 175
;
2013 (2) SA 52
(SCA)). In the case of Mzinyathi on costs,
no cogent and justifiable grounds have been placed before this court
to interfere with
the discretion of the court a quo, save to
underscore the tradition of the GCB being insulated against a costs
order regardless.
The appeal in this regard must also fail.
[31] In the result I
make the following order:
1 The appeal is
upheld with no order as to costs.
2 The counter-appeal
is dismissed with costs including the costs of two counsel.
3 Paragraph 177.1 of
the order of the court a quo is confirmed.
4 Paragraph 177.2.1
and 177.2.2 are set aside and replaced with the following:
‘
The
application for the striking off the roll of Ms Jiba and Mr Mrwebi is
dismissed with no order as to costs; however as regards
Mr Mrwebi he
is suspended as an advocate for a period of six months from the date
of this order (15 September 2016).’
_______________________
J
B Z Shongwe
Acting Deputy
President Supreme Court of Appeal
Van
der Merwe JA (Leach JA concurring)
[32]
I have had the benefit of reading the judgment of Shongwe ADP, and
find myself respectfully unable to agree with his conclusions
in
respect of the appeal and cross appeal. In my judgment the appeals of
Ms Nomgcobo Jiba (Ms Jiba) and Mr Lawrence Sithembiso
Mrwebi (Mr
Mrwebi) should fail and the cross appeal of the General Council of
the Bar (the GCB) should succeed.
[33]
An advocate is required to be of ‘complete honesty, reliability
and integrity’. See
General
Council of the Bar of South Africa v Geach and others
[2012]
ZASCA 175
;
2013 (2) SA 52
(SCA) paras 126-127. It goes without saying
that these qualities are particularly required of an advocate who
holds high public
office in the administration of justice.
[34]
Whether a person should be struck from the roll of advocates for
failure to comply with these standards, is determined by a
three-stage process. The first entails a factual finding in respect
of the alleged offending conduct. If that conduct is established,
the
second stage comprises a finding as to whether the person is a fit
and proper person to continue to practise. If not, the third
stage
involves the exercise of a discretion in respect of whether a removal
from the roll of advocates or suspension from practise
is
appropriate. This court, on appeal, has limited grounds to interfere
with such discretion. It can only do so if the court a
quo acted
capriciously, or on a wrong principle, or if it failed to bring an
unbiased judgment to bear on the issues or did not
have substantial
reasons – see
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998
(4) SA 649
(SCA) at 654D-G.
[35]
In light of these considerations I deal with the appeals of Ms Jiba
and Mr Mrwebi in turn.
Ms
Jiba
[36]
Ms Jiba was a Deputy National Director of Public Prosecutions. During
the period from 28 December 2011 to 30 August 2013 she
acted as the
National Director of Public Prosecutions and thus headed the National
Prosecuting Authority (NPA). The contention
that Ms Jiba is not a fit
and proper person to continue to practise as an advocate was based on
her alleged conduct in her capacity
as Acting National Director of
Public Prosecutions (ANDPP) in relation to three matters.
[37]
In the first matter, Freedom Under Law (FUL), a public interest
organisation,
inter
alia,
sought the review and setting aside of the decision of Mr Mrwebi,
who was at the time a Special Director of Public Prosecutions,
to
withdraw charges of fraud and corruption against Lieutenant General
Richard Mdluli. At the time Mr Mdluli was the head
of the Crime
Intelligence Unit of the South African Police Service (SAPS). FUL
succeeded in the Gauteng Division, Pretoria where
Murphy J reviewed
and set aside the decision to withdraw these charges against Mr
Mdluli. His judgment is reported as
Freedom
Under Law v National Director of Public Prosecutions and others
2014
(1) SA 254
(GNP) (the
FUL
matter).
An appeal to this court against that part of the order of Murphy J
was unsuccessful. In
National
Director of Public Prosecutions and others v Freedom Under Law
[2014]
ZASCA 58
;
2014 (4) SA 298
(SCA) Brand JA, speaking for a unanimous
court, held that Mr Mrwebi had failed to comply with the
provisions of s 24(3) of
the National Prosecuting Authority Act 32 of
1998 (the NPA Act), which required him to take the decision in
consultation with,
that is with the concurrence of, the Director of
Public Prosecutions for the Gauteng Division, Pretoria
(Mr Mzinyathi).
[38]
In the second matter, Major-General Johan Booysen, in essence, sought
the review and setting aside of the decision of Ms Jiba
to authorise
the institution of a prosecution against him. The matter served
before Gorven J in the KwaZulu-Natal Local Division,
Durban who
granted the relief claimed. Gorven J found that the decision was
irrational. His judgment is reported as
Booysen
v Acting National Director of Public Prosecutions and others
[2014]
2 All SA 391
(KZD) (the
Booysen
matter).
[39]
The relevant aspects of the third matter appear from the judgment of
this court in
Zuma
v Democratic Alliance and others
[2014]
ZASCA 101
;
[2014] 4 All SA 35
(SCA) (the
Zuma
matter)
.
This judgment formed part of protracted litigation between Mr Zuma
and the Democratic Alliance and dealt with the precise ambit
of a
previous order that the ANDPP produce and lodge the record relating
to the decision to discontinue the prosecution of Mr Zuma.
[40]
The court a quo based its finding that Ms Jiba was not a fit and
proper person to practise as an advocate, only on her conduct
in the
FUL
matter.
In the process it rejected the contentions of the GCB that the
conduct of Ms Jiba in the
Booysen
and
Zuma
matters
also justified her being struck from the roll of advocates. In this
court, counsel for Ms Jiba argued that in the absence
of a cross
appeal it was not open to the GCB, on appeal, to rely on the conduct
of Ms Jiba in the
Booysen
and
Zuma
matters.
[41]
This argument is without merit. It is trite that on appeal a
respondent may seek to justify the order appealed against on any
ground that the record of appeal allows. A cross appeal is only
required when a respondent seeks a variation of the order of the
court a quo, as is the case here in respect of the costs order
against the GCB. The reason for this is that an appeal lies only
against an order, not the reasons for the order. It matters not that
the reasons for the order may to some extent have been incorporated
in the order itself. The court a quo made the order in respect of Ms
Jiba that the GCB had proposed. A cross appeal in respect
thereof
would be nonsensical. Thus, the GCB was entitled to seek to justify
this order with reference to the
Booysen
and
Zuma
matters.
[42]
The essential issue in the
Zuma
matter was whether the record of decision that had been submitted by
Ms Jiba should have included certain tapes or transcripts,
alleged by
Mr Zuma to be confidential, and internal memoranda of the office of
the NDPP relating to the tapes and transcripts.
Navsa ADP said that
in her answering affidavit Ms Jiba failed to adopt a position in
respect of the former and resorted to ‘a
metaphorical shrugging
of the shoulders’. He said that this displayed a baffling lack
of interest in being of assistance
to the court. In respect of the
internal memoranda, Navsa ADP stated that ‘Ms Jiba provided an
“opposing’’
affidavit in generalised, hearsay and
almost meaningless terms’. Navsa ADP added that the
generalisation resorted to by Ms
Jiba was, ‘to say the least,
disingenuous’. Thus, this court held in the
Zuma
matter
that Ms Jiba had acted in a singularly unhelpful manner and had been
less than truthful.
[43]
In her answering affidavit in the
Booysen
matter,
Ms Jiba stated that she had based the decision to authorise the
prosecution of Mr Booysen on,
inter
alia,
four documents that were annexed to her answering affidavit, as
annexures NJ2, NJ3, NJ4 and NJ5. She said that Mr Booysen ‘is
directly implicated under oath in the statements placed before me in
Annexures “NJ2” to “NJ5”’.
[44]
In this regard Gorven J held 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 Colonel Aiyer. These are annexures NJ2 and NJ4
respectively. Mr Booysen describes these as statements which
concern
“office politics” and submits 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 document
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 can be attributed to the named person
and even if it was a
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 regards annexure NJ5, this does not
implicate Mr Booysen in any
of the offences in question.
[32]
In argument, the respondents did not in any way challenge the above
factual submissions concerning the nature and content of
the
annexures in question. The factual submissions appear to me to be
accurate.’
[45]
Counsel for Ms Jiba pointed out that annexure NJ3 was patently not an
affidavit, it had not even been signed, and argued that
it is
improbable that Ms Jiba intended to express a deliberate
falsehood or attempted to mislead the court in respect of this
annexure. That may be so, but the force of the argument is reduced by
the fact that Ms Jiba did not explain in her answering affidavit,
in
the present matter, that she had mistakenly described annexure NJ3 as
a statement under oath. In any event, this could not explain
the
objectively false statements by Ms Jiba under oath that she had
regard to all these annexures when she made the decision to
authorise
the prosecution of Mr Booysen and that Mr Booysen had been
directly implicated in the alleged crimes in all of these
statements.
The court a quo should, in my view, have taken cognisance thereof
that unexplained false statements were made by an
advocate acting as
the NDPP in respect of the essence of the
Booysen
matter, namely the reasons for the decision to authorise the
prosecution.
[46]
In the
FUL
matter
a dismally incomplete record of the decision had been filed out of
time. I am in agreement with counsel for Ms Jiba that
in terms of
rule 53(1) the primary obligation to submit the record of
decision rested on Mr Mrwebi. He had taken the decision
to withdraw
the fraud and corruption charges against Mr Mdluli. But that did not
absolve Ms Jiba from all responsibility. Indeed,
in her answering
affidavit in the present application she did not rely on the absence
of an obligation on her to ensure the filing
of a proper record of
the decision. Instead, she attempted unconvincingly to justify the
filing of an incomplete record on the
basis of uncertainty at the
time as to what should be included in such a record of decision. As
the head of the NPA, who had been
cited in that capacity as a party
in the
FUL
matter,
Ms Jiba bore the overall responsibility for the submission of a
proper record of the decision. It suffices to say that this
conduct
displayed at least a lack of appreciation of the duty of an advocate
to assist the court to come to a speedy and just conclusion.
[47]
This is also illustrated by the following. On 8 October 2012, FUL
delivered a supplementary founding affidavit in terms of
rule 53(4).
On 14 March 2013 it filed a further supplementary affidavit. This was
necessitated by the paucity of the records filed
and by further
documents that had become publicly available. The respondents in the
FUL
matter,
including Ms Jiba and Mr Mrwebi, had to file answering affidavits by
no later than 2 May 2013. They did not do so. On 5
June 2013, Ledwaba
DJP issued a directive obliging the respondents to deliver answering
affidavits by no later than 24 June 2013.
One would have thought that
the timeous filing of the answering affidavits of Ms Jiba and Mr
Mrwebi would in the circumstances
have become a matter of critical
concern to them. On her own evidence, however, Ms Jiba made no
attempt to ensure compliance with
the directive. New counsel was
briefed to draft the answering affidavits of Ms Jiba and Mr Mrwebi
only on 18 June 2013. Nevertheless,
by 21 June 2013 counsel
had
managed to prepare draft answering affidavits and made them available
for perusal and comments to be given by midmorning on
Sunday, 23 June
2013. Ms Jiba said that she was unaware hereof. On 26 June 2013,
two days after the deadline for the filing
of the answering
affidavits, Ms Jiba had an unscheduled meeting with counsel in
chambers. Counsel personally informed her that
the draft answering
affidavits had been made available. This notwithstanding, the
answering affidavits were only filed on 4 July
2013.
[48]
Mr Mrwebi took the decision to withdraw the fraud and corruption
charges against Mr Mdluli on 4 or 5 December 2011. These charges
related only to certain motor vehicle transactions. During April
2012, two members of the NPA, advocates G Breytenbach and
J M
Ferreira, submitted a memorandum to Ms Jiba. This memorandum was
referred to by the parties as the Breytenbach memorandum and
for
convenience I continue to do so. The Breytenbach memorandum implored
Ms Jiba to review the decision of Mr Mrwebi to withdraw
the
fraud and corruption charges in respect of the motor vehicle
transactions. It also mentioned that new evidence of possible
further
similar offences by Mr Mdluli had since become available.
[49]
Ms Jiba did not mention the Breytenbach memorandum in her answering
affidavit in the
FUL
matter.
In the founding affidavit in the present matter, the GCB suggested
that this failure to disclose the Breytenbach memorandum
constituted
an attempt to mislead the court and that suggestion found favour with
the court a quo. However, FUL had obtained the
Breytenbach memorandum
and it formed part of its papers in the
FUL
matter. This is not clear form the record, but I accept that it was
probably submitted with one of FUL’s supplementary founding
affidavits. Although Ms Jiba did not appear to be aware that the
Breytenbach memorandum formed part of the papers, I accept that
it is
improbable that she intended to conceal the Breytenbach memorandum.
[50]
However, this is not the end of the enquiry for present purposes. Ms
Jiba stated in her answering affidavit, in the
FUL
matter,
that the decision of Mr Mrwebi ‘had not been brought to my
office for consideration in terms of the regulatory framework’
and that she had not received a request to review the decision by a
person whom she considered to be relevant. She went so far
as to say
that to ‘descend into the arena without any representations
being made to my office’ would prejudice Mr Mdluli
or any other
interested party.
[51]
A different picture emerged from Ms Jiba’s answering affidavit
in the present matter. First, she said that immediately
after she
learnt that the charges against Mr Mdluli had been withdrawn, she
called for a briefing by Mr Mrwebi and Mr Chauke (who
had withdrawn
murder charges against Mr Mdluli) and was satisfied with the
reasons that were advanced for the withdrawal of
the charges. Thus,
Ms Jiba in fact did review or reconsider the withdrawal of the
charges.
[52]
Second, Ms Jiba elaborated as follows in respect of the Breytenbach
memorandum:
‘
135.
I deny that the memorandum received from Adv Breytenbach, 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.’
[53]
This view about the Breytenbach memorandum could not have been
honestly held. Ms Breytenbach was the regional head of the
Specialised Commercial Crime Unit in Pretoria. This memorandum was
submitted by ‘the lead prosecutors in the matter’.
In
their 24 page memorandum they made a persuasive case that Mr Mdluli
should be prosecuted on the fraud and corruption charges
relating to
the motor vehicle transactions. The Breytenbach memorandum was
certainly worthy of consideration. The statement that
it emanated
from a person that was not and should not have been considered
relevant, is simply spurious.
[54]
Third, after the answering affidavit of Ms Jiba in the present matter
had been filed, the GCB requested copies of the memoranda
by
advocates Becker and Viljoen, in terms of the provisions of rule
35(12). Only one memorandum, dated 25 June 2013, was produced.
It did
not at all convey that the prosecution of Mr Mdluli should not
proceed. It only conveyed that the investigation of the fraud
and
corruption charges in respect of the motor vehicle transactions and
four other matters of similar nature, had not yet been
concluded.
Thus Ms Jiba’s evidence was untruthful in all three of these
respects.
[55]
The matters that I have mentioned extend beyond mere incompetence or
unsuitability for the position of ANDPP. First, they demonstrate
a
serious lack of appreciation or disregard of the duty of an advocate
to be of assistance to the court and to uphold the administration
of
justice. The fact that Ms Jiba was a litigant in official capacity in
these matters is no excuse. That was all the more reason
for her to
conduct the litigation with the utmost trustworthiness and integrity.
Second, in all three matters Ms Jiba gave untruthful
evidence under
oath and thus displayed dishonesty and a lack of integrity.
[56]
The importance of legal practitioners being scrupulously honest in
their dealing with the court has been stressed time and
again in this
country – see eg
Toto
v Special Investigating Unit
2001
(1) SA 673
(E) at 683A-F and the cases there cited. As the court
stressed in
Kekana
at
655G-656B, in our system of justice the courts should be able to rely
absolutely on the word of practitioners, and for that reason
there is
a serious objection to allowing a practitioner who is untruthful, and
deceives or attempts to deceive a court, to continue
in practice.
What is also relevant, but was not taken into account by the court a
quo, is that Ms Jiba has persisted throughout
these proceedings with
a denial under oath of misconduct on her part. This shows a lack of
insight into what she did wrong. In
itself it is an important factor
which refers adversely on her character, and is a weighty
consideration in militating against
any lesser stricture than her
removal from the roll – see
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at 539B-C.
[57]
As is mentioned in more detail below, the GCB is the watchdog of the
profession. As such, it bears an onerous duty owed to the
public at
large to ensure that practitioners meet the high standards of
integrity expected of them. Instead of recognising the
importance of
the functions the GCB carries out as
custos
morum
of the profession, she berated it. She alleged, inter alia, that the
GCB had displayed ‘double standards’, that the
founding
affidavit of the GCB ‘seeks deliberately to mislead the court
and indeed the public’ and that the application
‘is
therefore misconceived, mischievous and is designed to embarrass me.’
All these allegations are unsubstantiated.
None of this is consistent
with the high standards of integrity expected from a practicing
advocate.
[58]
For the aforementioned reasons I am not persuaded that the court a
quo erred in finding that Ms Jiba was not a fit and proper
person to
practice as an advocate. In fact the reasons to do so are more
extensive than those relied on by the court a quo. There
is therefore
not only no reason to interfere with the exercise of the discretion
of the court a quo in respect of the appropriate
sanction, but in my
view it was correct in ordering Ms Jiba’s name to be removed
from the roll.
Mr
Mrwebi
[59]
Mr Mrwebi was a Special Director of Public Prosecutions and headed
the Specialised Commercial Crime Unit of the NPA. As I have
said, he
was directly responsible for submitting the record of his decision in
the
FUL
matter. He failed to file a proper record and did not deliver his
answering affidavit in time. He gave no acceptable explanation
for
these failures. On his own evidence he took no interest in these
aspects.
[60]
These instances of unreliability must be also viewed in the light of
what follows. Mr Mrwebi said that he took the decision
to withdraw
the fraud and corruption charges against Mr Mdluli on 5 December
2011, after he had spoken to Mr Mzinyathi earlier
that day. He
recorded the reasons for his decision in a memorandum which he said
was incorrectly dated 4 December 2011. In the
memorandum he expressed
scepticism in respect of the merits of the charges, but said that
this was unimportant in view of his conclusion.
His conclusion was
that ‘the offences for which Mdluli was charged fall squarely
within the mandate’ of the Inspector-General
of Intelligence
(IGI) in terms of the Intelligence Services Oversight Act 40 of 1994.
He concluded that the prosecution of Mr Mdluli
could therefore not
continue and that the investigator should advise the complainants to
refer the complaint to the IGI.
[61]
On 22 January 2013 Mr Mrwebi testified in disciplinary proceedings
instituted against Ms Breytenbach, after her suspension
from office
during April 2012. His evidence under cross examination in
respect of his engagement with Mr Mzinyathi presented
a sorry
picture. He acknowledged that s 24(3) of the NPA Act required the
agreement of Mr Mzinyathi in order for the charges to
be withdrawn.
He then attempted to say that he did reach such agreement with
Mr Mzinyathi on 5 December 2011. Then he referred
to this as a
‘50/50 agreement’. Thereafter he referred to it as
‘substantial’ agreement. However, earlier
in his evidence
he said that at their meeting, on 5 December 2011, Mr Mzinyathi had
expressed the view that there was a
prima
facie
case against Mr Mdluli. Mr Mrwebi eventually conceded that Mr
Mzinyathi did not agree to stop the prosecution at all.
[62]
This part of the evidence reads as follows:
‘
ADV
TRENGOVE
:
He did not agree to stop the prosecution at all. Correct?
ADV
MRWEBI
:
No, in respect of certain issues.
ADV
TRENGOVE
:
He did not agree to stop the prosecution at all.
ADV
MRWEBI
:
In respect of certain issues.
ADV
TRENGOVE
:
What do you mean by that?
ADV
MRWEBI
:
He identified, he agreed with me in terms of the problems that there
were that . . .
ADV
TRENGOVE
:
Did he agree to stop the prosecution?
ADV
MRWEBI
:
The decision was mine.
ADV
TRENGOVE:
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’s my final answer.’
Notwithstanding
this, Mr Mrwebi thereafter recanted by saying that he believed that
he had reached substantial agreement with Mr
Mzinyathi on 5 December
2011. This prompted counsel to say that he would submit to the
chairperson of the enquiry that this evidence
was patently dishonest.
That would indeed be a proper description of his evidence.
[63]
By then Mr Mrwebi must have realised that his decision would not
withstand scrutiny. As an officer of court he should have
conceded
this. But Mr Mrwebi persisted in opposing the relief claimed in
respect of his decision in the
FUL
matter. In his answering affidavit in that matter he glossed over his
conversation with Mr Mzinyathi on 5 December 2011. He then
said that
at his subsequent meeting with Mr Mzinyathi and Ms Breytenbach, on 9
December 2011, they both agreed with him that there
was a serious
defect in the case against Mr Mdluli on the merits. This was not
only irrelevant, as the decision to withdraw
the charges had been
taken on 5 December 2011, but was emphatically shown to be untrue by
the evidence of Mr Mzinyathi and the
conduct of Ms Breytenbach.
[64]
In his answering affidavit in the present application, Mr Mrwebi
repeatedly said that on 5 December 2011 he had been under
the
impression that he was only required to speak to Mr Mzinyathi in
order to comply with s 24(3) of the NPA Act, and that it had
not been
necessary to obtain his approval. This directly contradicted his
evidence at the disciplinary hearing.
[65]
It is quite astonishing that a Special Director of Public
Prosecutions could have held the view that the investigation of fraud
and corruption charges relating to motor vehicle transactions fell
within the functions of the IGI. When Mr Mzinyathi and
Ms
Breytenbach questioned this during their meeting with Mr Mrwebi
on 9 December 2011 (they had spoken to the legal advisor
of the IGI
on the previous day), Mr Mrwebi intimated that his withdrawal of the
charges on 5 December 2011 should be regarded as
provisional, pending
further investigation.
[66]
On 26 March 2012 a letter from the office of the IGI to the Acting
National Commissioner of the SAPS, dated 19 March 2012,
was handed to
Mr Mrwebi. This letter conveyed the following clear position:
‘
1.
We refer to your letter of the 22 February 2012 wherein you requested
an opinion on the reasons advanced by the National Prosecuting
Authority for the withdrawal of the criminal charges against Lt
General Mdluli.
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 (IGI) derives her mandate from
the Constitution of the Republic of South Africa, 1996
and the
Intelligence Services Oversight Act, 1994 (Act 40 of 1994) which
provides for the monitoring of the intelligence and counter-
intelligence activities of the Intelligence Services,
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 IGI does not extend to criminal investigations
which are court driven and neither can IGI 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.’
[67]
Without any further investigation or engagement, Mr Mrwebi responded
in writing to General Dramat of the SAPS on 30 March 2012
‘that
my decision to instruct the withdrawal of the charges still stands
and that the matter is closed’. His subsequent
explanation of
this conduct, namely that it had been agreed on 9 December 2011 that
there was a serious defect in the case and
that nothing changed
thereafter, has been shown to be false. The inference is irresistible
that Mr Mrwebi had throughout used his
senior position in the
prosecutorial service to advantage Mr Mdluli and to ensure that he
not be prosecuted.
[68]
As already set out, Mr Mrwebi lied about the events of both 5 and 9
December 2011 and abused his position. Not only has Mr
Mrwebi shown
himself to be seriously lacking in integrity, but has failed in these
proceedings to have taken the court into his
confidence and fully
explained his actions. All of this hallmarks him as a person unfit to
practice as an advocate, particularly
in the light of the authorities
already referred to when dealing with Mr Jiba. I have no hesitation
in endorsing the order of the
court a quo that Mr Mrwebi should
be struck from the roll of advocates.
Cross
appeal
[69]
The GCB cross appeals against the following order of the court a quo:
‘
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.’
The
GCB submits that no order should have been made in respect of the
costs of Mr Mzinyathi.
[70]
In the
FUL
matter, Murphy J made findings in respect of the
credibility of Mr Mzinyathi that required serious consideration of
whether he was
a fit and proper person to continue to practice as an
advocate. Murphy J
inter alia
said:
‘
Taking
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
fait
accompli
and was unable to influence the decision because Mrwebi claimed to be
functus
officio
,
this evidence of the DPP of North Gauteng, to the effect that he
ultimately concurred, must regrettably be rejected as
un-creditworthy.
The affidavit is a belated, transparent and
unconvincing attempt to re-write the script to avoid the charge of
unlawfulness.’
These
findings formed the heart of the complaint against Mr Mzinyathi in
the present application.
[71]
In his answering affidavit in the present application, Mr Mzinyathi
explained the circumstances of his involvement and the
context of his
affidavit in the
FUL
matter.
In the result, the GCB did not engage with the answering affidavit in
its replying affidavit and at the hearing in the court
a quo declared
that it left the matter of Mr Mzinyathi in the hands of the court.
[72]
The GCB is the
custos
morum
of the profession of advocates, in the public interest, in much the
same manner that the Law Societies act as the guardians of
the
attorneys’ profession. As such it brings matters of alleged
misconduct of advocates to the attention of the court. The
nature of
an application by the GCB to strike an advocate from the roll of
advocates is a disciplinary enquiry conducted by the
court. In these
sui
generis
proceedings the GCB is therefore not in the position of an ordinary
litigant. See
Society
of Advocates of South Africa (Wits Division) v Edeling
1998 (2) SA 852
(W) at 859G-I. For these reasons our courts have over
many decades recognised the principle that unless the GCB had acted
irresponsibly
in bringing a disciplinary matter to the attention of
the court, the GCB should not be mulcted in costs, even if the court
decides
that the practitioner should not be struck from the roll or
suspended. See the remarks of Tindall J in
Incorporated
Law Society v Taute
1931
TPD 12
at 17, approved by this court in
Botha
v Law Society, Northern Provinces
[2008] ZASCA 106
;
2009 (1) SA 227
(SCA) para 22.
[73]
It was with explicit recognition of this principle that counsel for
Ms Jiba submitted that no order as to costs should be made
in the
event of her appeal being successful. The court a quo was not alive
to this principle and therefore misdirected itself.
The GCB cannot be
faulted for bringing the findings of Murphy J to the attention of the
court. It was its duty to do so. Even though
the answering affidavit
of Mr Mzinyathi in the present application appeared to contain an
acceptable explanation of the criticisms
of Murphy J, it was not for
the GCB to assume the function of the court and determine that the
proceedings in respect of Mr Mzinyathi
should terminate. Its decision
to leave the matter in the hands of the court, was principled and
responsible. In my judgment the
GCB should therefore not have been
ordered to pay Mr Mzinyathi’s costs.
[74]
I would therefore make the following order:
1 The appeal of the
first appellant (Ms Jiba) and the second appellant (Mr Mrwebi) are
dismissed, and they are in each instance
to pay the costs of the
respective appeal, such costs to include the costs of two counsel.
2 The cross appeal
of the GCB in the case of the third respondent a quo, Mr Mzinyathi,
is upheld with costs of two counsel, and
para 1 of the order of the
court a quo is altered to read as follows:
‘
The
case against Mzinyathi (third respondent) is dismissed with no order
as to costs.’
____________________
C
H G Van der Merwe
Judge
of Appeal
Appearances
For
the First Appellant: N Arendse SC (with him T Masuku and S Fergus)
Instructed
by:
Majavu
Inc. Attorneys, Johannesburg;
Rampai
Attorneys, Bloemfontein.
For
the Second Appellant: M Rip SC (with him R Ramawele SC)
Instructed
by:
A
M Vilakazi Tau Attorneys, Pretoria;
Lovius-Block,
Bloemfontein
For
the Appellant and Respondent
in
Cross-Appeal: S Burger SC (with him N T Mayosi)
Instructed
by:
Magaga
Inc. Attorneys, Pretoria;
Honey
attorneys, Bloemfontein.
For
the Respondent in
Cross-Appeal:
D B Ntsebeza SC (with him S X Mapoma)
Instructed
by:
Bernhard
van der Hoven Attorneys, Pretoria;
Rosendorff
Reitz Barry, Bloemfontein.