Dear Corruption Watch, a legal professional body has gone to court to have two senior National Prosecuting Authority officials Lawrence Mrwebi and Nomgcobo Jiba, struck off the roll of advocates. How does this work? Surely the professional body can regulate itself? Why does it have to go to court?
Your questions are particularly relevant in light of the controversy surrounding the independence of the NPA, which has most recently manifested in President Jacob Zuma’s decision to terminate the inquiry into the fitness of the current head of the NPA, Mxolisi Nxasana, to hold office.
Lawrence Mrwebi is currently the head of the NPA’s specialised crime intelligence unit, and Nomgcobo Jiba is the deputy national director of the NPA. Both are also advocates, whose names are listed on the court roll of advocates, entitling them to practise as such, and to appear before the courts of South Africa.
One of the essential requirements to be admitted onto the roll of advocates is that the person in question is “fit and proper”. This has been held by the courts to mean that the person must have the characteristics of unwavering honesty and integrity. The “fit and proper” requirement is critical: it serves the public interest by protecting members of the public from dishonest advocates, and it serves the administration of justice so judges may rely on the integrity of the advocates who appear before them in court.
Importantly, the Admission of Advocates Act also authorises the courts to remove an advocate from the roll where in the court’s view they are not a fit and proper person to continue practising as an advocate. The act also prescribes that the court ultimately has oversight over whether an advocate is removed from the roll (effectively ending their career), or whether a lesser form of sanction, such as a period of suspension, is appropriate.
The General Council of the Bar is a professional body that regulates the affairs of advocates in South Africa. Among other things, the council regulates the professional conduct of advocates to uphold the highest standards of professional ethics. Where it believes that grounds exist to apply to court to have an advocate removed from the roll, it will make such an application.
In the cases of Mrwebi and Jiba, the council has launched applications to have them both removed from the roll of advocates, on the basis that they have single-handedly engaged in conduct (including, for example, committing perjury, or lying under oath) rendering them no longer “fit and proper” to practise as advocates in South Africa.
This is very significant in the context of the leadership positions that they currently occupy within the NPA. In terms of section 9(1)(b) of the National Prosecuting Authority Act, any person who is appointed as a director, national director or deputy national director must be “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity”.
If the council succeeds in its application against Mrwebi and Jiba (and any subsequent appeals), and a court finds that they are not fit and proper to practise as advocates, this will have consequences fr their leadership positions within the NPA.
In Jiba’s case, this will mean she can no longer hold the office of deputy national director of the NPA. In Mrwebi’s case, although he is not a director or deputy director, it is inevitable that he may no longer serve as the head of a division within the NPA since the position he occupies requires that it is held by someone with unassailable integrity.
We will monitor the council’s applications with keen interest.
• Do you face an ethical dilemma? Do you suspect corruption? If you need help to resolve such issues, write to the Corruption Watch experts at firstname.lastname@example.org. Mark your letter ‘Dear Corruption Watch’.
• This article was first published in Sunday Times: Business Times