Publications
Partners
The Constitutional Court has reserved judgment in a General Council of the Bar of South Africa (GCB) application aimed at having suspended deputy prosecutions boss Nomgcobo Jiba and her colleague, Lawrence Mrwebi, struck from the roll of advocates.
The GCB initially succeeded in its striking off application before the Gauteng High Court in Pretoria but lost when the suspended advocates took the matter to the Supreme Court of Appeal (SCA).
Now it wants to take the matter further but needs the go-ahead from the Constitutional Court.
In court on Thursday morning, advocate Schalk Burger, SC, who represented the GCB, argued that the SCA "misdirected itself as to the facts" in the majority judgment.
Burger also submitted that Jiba "gave false evidence in the opposing review" of former KZN Hawks boss Major General Johann Booysen.
"In fact, she had given false evidence in her answering affidavit deposed to in the Booysen matter.
He quoted part of the evidence and said it was a lie.
"It is clearly false," Burger argued.
Asked if the SCA erred in the test it applied in the matter, Burger replied: "No, our submission is that the majority in the SCA misdirected itself as to the facts. They looked at the wrong facts."
READ: General Council of the Bar of SA files leave to appeal papers in Jiba, Mrwebi saga
Advocate Norman Arendse, SC, who represented Jiba, said: "We submit that...from the majority judgment and the minority judgment, that the NPA is not even discussed, so there is no impact on the independence of the NPA. None of those issues are discussed at all."
Mrwebi's advocate Mervyn Rip SC, submitted: "There [has] always been a factual attack on what his conduct was. We do not believe that anyone made any submissions to challenge the constitutionality of the NPA Act or any of its provisions.
"The attack is being purely on Section 7 of the admission of advocates Act and whether or not they remain fit and proper to be admitted advocates."
Responding, advocate Geoff Budender, SC, who also represented the GCB, said prosecutorial dishonesty was at the heart of the rule of law and at the heart of the purpose of the independence of the NPA.
"This is not a case of dishonesty in their prosecution. It is dishonesty in an attempt in justifying non-prosecution. The case raises a constitutional question when it pinches on constitutional questions," he said.
Budlender said in the case of Mrwebi, it was "indisputable" that his evidence was dishonest.
READ: SCA overturns ruling that struck Nomgcobo Jiba, Lawrence Mrwebi off the roll of advocates
Jiba was acting NDPP from December 28, 2011 until August 30, 2013.
Jiba and Mrwebi were struck from the roll of advocates on September 15, 2016, after Judge Francis Legodi agreed with the GCB that they were "not fit and proper" to be advocates.
The case went to the SCA in Bloemfontein and In July last year, the SCA overturned the High Court's ruling.
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 Appeal Court Judge Jeremiah Shongwe, the SCA found that the GCB could not establish any misconduct on Jiba's part.
Turning to Mrwebi, the court said: "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."
