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Axed deputy prosecutions boss Nomgcobo Jiba and her colleague, Lawrence Mrwebi will remain on the roll of advocates after the General Council of the Bar of South Africa (GCB) lost its leave to appeal application in the Constitutional Court on Thursday.
The unanimous judgment was written by Justice Chris Jafta.
Jiba and Mrwebi were struck from the roll of advocates on September 15, 2016, after Judge Francis Legodi in the Gauteng High Court in Pretoria agreed with the GCB that they were "not fit and proper" to be advocates.
The matter went to the Supreme Court of Appeal, which overturned the High Court's ruling but the GCB approached the Constitutional Court for relief.
Not constitutional matter
The apex court found that the GCB had not established that the matter fell within the jurisdiction of the court.
"This means that the appeal cannot be entertained," Jafta said.
Jafta also said the cause of action advanced by the GCB was that the respondent's name should be struck from the roll because they are no longer fit and proper persons to continue practising as advocates.
"Reliance was placed on making false statements under oath, suppressing information to mislead a court and abusing powers of the office they held.
"None of these matters raises a constitutional issue," he said.
He said the interpretation and application of Section 7 of Admission Act does not of itself raise a constitutional issue.
"Here, the GCB did not seek to protect a constitutional right. All that it sought to do was to enforce the Admission Act so as to protect the public and preserve the proper functioning of the administration of justice. While there are important objectives ,they do not, in this case, give rise to a constitutional issue.
No misconduct
Jafta also said, in relation to Jiba, the majority of the SCA judges found that no misconduct was established in the first place and that the issue of dishonesty did not arise.
He said with respect to Mrwebi, the majority found that misconduct was proved but held that he was not dishonest.
"For its part, the minority found that the facts had established dishonesty on the part of both respondents," he said.
Jiba was acting National Director of Public Prosecutions between December 28, 2011, and August 30, 2013.
