The General Council of the Bar of South Africa (GCB) has approached the Constitutional Court for leave to appeal a Supreme Court of Appeal (SCA) ruling in favour of deputy prosecutions boss Nomgcobo Jiba and her colleague, Lawrence Mrwebi.

The SCA overturned a ruling of the North Gauteng High Court in Pretoria that Jiba and Mrwebi be struck from the roll of advocates.

In papers filed on Tuesday, chairperson of the GCB advocate Craig Watt-Pringle SC said he believed there were “reasonable prospects of success in an appeal”.

He said four judges had found that striking off orders should be made in the circumstances of the case and three disagreed.

“The application by the General Council of the Bar of South Africa is to request the court by the custos morum (ethical standards) of the profession to use its disciplinary power over an officer of the court who has misconducted him or herself.”

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Watt-Pringle said the GCB’s role was to bring the evidence of a practitioner’s misconduct to the attention of the court for the latter to exercise its disciplinary powers.

He said the GCB acted in the interest of the court, the profession and the public.

Richard Mdluli case

Jiba was acting National Director of Public Prosecution (NDPP) from December 28, 2011, until August 30, 2013.

Watt-Pringle said most of the events that formed the subject of the application occurred shortly before and during her term as acting NDPP.

He said the complaints against Jiba arose from three cases. One of the cases involved the pair’s decision to drop charges against former Crime Intelligence head Richard Mdluli, who faced several charges.

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In the majority judgment, the SCA said that when the High Court gave its ruling, it described Mdluli and detailed his personality.

It also 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 way Jiba and Mrwebi handled the Mdluli case,” Appeal Court Judge Jeremiah Shongwe said.  

Shongwe added that the High Court had referred to a letter by Mdluli to former president Jacob Zuma, the Minister of Safety and Security and commissioner of police which stated that the charges brought against him were a conspiracy.

He said he was unable to “glean the relevance of quoting from the said letter”. He also added that the letter was “far-fetched and did not establish whether Jiba was not fit and proper to practise as an advocate”.

The conduct of advocates

However, Watt-Pringle said in his application to the Constitutional Court that the letter in question was from Mdluli to Zuma.

He said it was not suggested that the letter “established whether Jiba was fit and proper person to practice as an advocate”, but that it was a letter in which Mdluli had promised to support the election of Zuma as president in 2012 in a “most inappropriate fashion”.

He said Mrwebi withdrew the serious criminal charges against Mdluli and Jiba allowed this to happen under her watch.

“I submit further that this is a matter of general public importance which ought to be considered by this court,” said Watt-Pringle.

“It involves the conduct of advocates holding very senior positions in the NPA, including the conduct of the acting national director of public prosecutions, and whether they are qualified to remain in such positions.

“I therefore respectfully submit that it is in the interest of justice that leave to appeal be granted,” he submitted.

Should leave to appeal be granted, the Bar wanted the appeal to be upheld with costs, including costs of two counsel, he said.

The Bar previously said that the decision on whether it should appeal the judgment was “extensively debated”.

It said the matter was put to the vote and 18 members voted in favour of applying for leave to appeal.

Twelve members voted against applying for leave to appeal and two members abstained.

Jiba, who initially asked to be placed on special leave, pending the SCA ruling, returned to work this month.

‘Not fit and proper’

Jiba’s lawyer Zola Majavu told News24 last week that he did not receive any instructions for her to be placed on special leave again.

“Until we are served with an application, we are constrained to comment. Such an appeal will in any event not affect her employment status with the NPA,” he said at the time.

Majavu had initially written to the National Director of Public Prosecutions (NDPP) Shaun Abrahams to request that Jiba be allowed to resume her duties at the NPA.

He indicated that Jiba intended to fight the GCB’s application for leave to appeal the ruling.

Jiba and Mrwebi were struck from the roll of advocates on September 15, 2016, after Judge Francis Legodi in the North Gauteng High Court agreed with the GCB that they were “not fit and proper” to be advocates.

The case went to the SCA in Bloemfontein and the Appeal Court ruled in favour of Jiba and Mrwebi.

The judgment was split among five judges – three ruled in favour of Jiba and Mrwebi and the others disagreed and gave a dissenting judgment.

In the majority judgment, authored by Shongwe, the SCA found that the GCB could not establish any misconduct on Jiba’s part.

Turning to Mrwebi, he found that he “genuinely, did not comprehend what the concept ‘in consultation’ meant”. However, the concessions he made under cross-examination indicated that he was at most, confused.

“As regards to 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.”