Today the Constitutional Court hears arguments from both sides in the matter of the General Council of the Bar (GCB) v Jiba, Mrwebi and others. The GCB is applying for leave to appeal a Supreme Court of Appeal (SCA) judgment reinstating top National Prosecuting Authority (NPA) officials Nomgcobo Jiba and Lawrence Mrwebi to the roll of advocates.
Jiba and Mrwebi were struck off the roll in September 2016 by the Pretoria High Court, although the case against Sibongile Mzinyathi, part of the same application, was dismissed with costs. The two appealed the judgment, which the SCA overtumed in July 2018. The majority judgment held that the GCB had failed to establish the alleged offending conduct on Jiba’s part, while a minority judgment upheld the High Court’s ruling.
The GCB appealed the SCA’s judgment, and also launched a cross appeal against the costs order regarding Mzinyathi.
Today the ConCourt hears arguments on the acceptable standard of conduct for determining whether advocates, including state advocates, are fit and proper persons to hold office. The court will deliberate whether the respondents’ conduct was sufficient to warrant being struck from the roll of advocates, and will also consider whether the GCB is exempt from the Mzinyathi costs order.
The GCB’s case focused on the conduct of the respondents during the Johan Booysen, Richard Mdluli and spytapes matters. It argues that, as far as the precedent for striking advocates off the roll is concerned, presenting false evidence (as it says Jiba did in the Booysen review of racketeering charges) is enough.
However, the Mokgoro Inquiry into whether Jiba and Mrwebi are fit to hold office is expected to file its report by Friday. It remains to be seen whether, like the Nugent Commission into the South African Revenue Service (Sars), the inquiry will find against the two prosecutors. If so, President Cyril Ramaphosa, who moved quickly against former Sars commissioner Tom Moyane on recommendations coming out of the Nugent Commission, might swiftly remove them from office as he did Moyane – before the ConCourt has a chance to deliver its judgment on the matter.