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Deputy NPA boss Nomgcobo Jiba is back at work and she intends to fight back when the General Council of the Bar of South Africa (GCB) applies for leave to appeal a ruling that paved the way for her return.
The Supreme Court of Appeal overturned a ruling of the North Gauteng High Court in Pretoria that she and colleague Lawrence Mrwebi be struck from the roll of advocates.
Jiba's advocate Zola Majavu old News24 that his client had returned to work on Monday. He also confirmed their intention to oppose the GCB's leave to appeal application.
The GCB announced its decision in a statement on Tuesday.
"We have noted the media report but at this stage we have not received any court papers or a formal letter in which the GCB signals its intention," Majavu said on Tuesday.
"We will respond more definitely upon receipt of the relevant court documents. For now, we have noted the media release and will not comment further," he said.
The bar said the decision on whether it should appeal the judgment was "extensively debated".
"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," it said.
READ: Jiba wants to get back to work, feels vindicated - lawyer
Last week, Majavu wrote to the National Director of Public Prosecutions (NDPP) to request that Jiba be allowed to resume her duties at the NPA.
Majavu said earlier that Jiba had initially asked to be placed on special leave while the SCA matter was pending.
Jiba and Mrwebi were struck from the roll of advocates on September 15, 2016, after Judge Francis Legodi in the 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 last week 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 Appeal Court Judge Jeremiah Shongwe, the SCA found that the GCB could not establish any misconduct on Jiba's part.
The court found that the High Court had misdirected itself in striking Mrwebi from the roll and that it failed to consider why suspension was not an appropriate sanction.
The High Court ruling followed Jiba's and Mrwebi's decision to drop charges against former Crime Intelligence head Richard Mdluli, who faced several charges.
ALSO READ: Nothing stopping Jiba, Mrwebi returning to work - NPA
The SCA said, 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," Shongwe wrote.
He said the High Court had referred to a letter Mdluli had written to former president Jacob Zuma, the Minister of Safety and Security and the police commissioner, 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."
He also criticised the High Court's finding that Jiba and Mrwebi did not only bring the prosecuting authority and legal profession into disrepute but had also brought the office of the President of the Republic of South Africa into disrepute after they failed to prosecute Mdluli.
"Surely this is irrelevant and cannot be a good reason singularly or cumulatively to remove an advocate from the roll."
Shongwe added: "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 [Deputy National Director of Public Prosecutions], but not sufficient enough to be removed from the roll of advocates."
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."
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