Jiba and Another v General Council of the Bar of South Africa and Another

• Jurisdiction: South Africa
• Citation: 2019 (1) SACR 154 (SCA)

Jiba and Another v General Council of the Bar of South Africa and Another
2019 (1) SACR 154 (SCA)

2019 (1) SACR p154

Citation	2019 (1) SACR 154 (SCA)
Case No	141/17 and 180/17; [2018] ZASCA 103
Court	Supreme Court of Appeal
Judge	Shongwe ADP, Leach JA, Seriti JA, Van Der Merwe JA and Mocumie JA
Heard	July 10, 2018
Judgment	July 10, 2018
Counsel	N Arendse SC (with T Masuku SC and S Fergus) for the first appellant, Ms Jiba.; M Rip SC (with R Ramawele SC) for the second appellant, Mr Mrwebi.; S Burger SC (with NT Mayosi) for the first respondent/cross-appellant, the General Council of the Bar of South Africa.; DB Ntsebeza SC (with SX Mapoma) for the respondent in the cross-appeal, Mr Mzinyathi.

Flynote : Sleutelwoorde

Legal practitioners — Advocate — Misconduct — Removal from roll — Appeal by advocates struck from roll — Complaints, inter alia, of provision of C incomplete records, late filing of affidavits, and attempts to mislead court — Cross-appeal by General Council of Bar against adverse costs order.

Headnote : Kopnota

The GCB [*] asked the Gauteng Division (Legodi J and Hughes J) for the removal from the roll of Ms Jiba, Mr Mrwebi and Mr Mzinyathi.

The D request flowed from, in the case of Jiba, her conduct in three matters. At the time Jiba was Acting National Director of Public Prosecutions.

The first involved filing of an incomplete record, late filing of answering affidavits, and statements Jiba made on affidavit. The matter was the review of the withdrawal of charges against Lieutenant General Richard Mdluli. (See [37], [46] – [47], [50] – [51] and [53] – [54].)

The E second concerned the truth of statements Jiba made in an affidavit. Her statements related to her decision to authorise prosecution of Major General Johan Booysen. (See [38] and [45].)

The third referenced Jiba's provision of a deficient record of the decision to discontinue prosecution of then President Jacob Zuma. (See [42].)

The F GCB's application in the case of Mrwebi concerned the failure to provide a proper record, and timeous affidavits, in the review of the withdrawal of charges against Lieutenant General Mdluli. It also related to the truth of statements Mrwebi made on affidavit and in certain disciplinary proceedings. He was then Special Director of Public Prosecutions. (See [1], [59] and [62] – [63].)

The G GCB's application in respect of Mzinyathi related to a High Court (Murphy J) finding that Mzinyathi made false statements in an affidavit. Mzinyathi was then a Director of Public Prosecutions. (See [1] and [70].)

The Gauteng Division struck Jiba and Mrwebi from the roll, and dismissed the GCB's application against Mzinyathi with costs (see [69]).

Here Jiba and Mrwebi appealed, and the GCB cross-appealed the adverse costs H order in the Mzinyathi complaint, to the Supreme Court of Appeal. Shongwe ADP wrote the judgment for the majority, and Van der Merwe JA wrote for the minority.

Jiba

The majority agreed with the Gauteng Division's dismissal of the complaints relating to the Booysen and Zuma matters (see [11]).

But I they disagreed with the Gauteng Division's holding on the Mdluli complaint (see [18]).

In the latter, the bases the GCB cited did not support a finding of misconduct. (See [18] and [29].)

2019 (1) SACR p155

They were that Jiba submitted an incomplete record in the review; Jiba A attempted to mislead the court by not disclosing a memo; Jiba's refusal to internally review the withdrawal of charges against Mdluli; Jiba's statement she had not received an affidavit, when she had; Jiba's disagreement with counsel's view there was a case against Mdluli. (See [15] – [18].)

The minority's view was that the Gauteng Division was correct in finding Jiba not fit and proper to practise (see [58]). B

This conclusion was supported by the instances of dishonesty described at [45], [51] and [53] – [54]; the failures to assist the court described at [42] and [46] – [47]; and the absence of integrity. (See [55] and [57].)

Mrwebi

The majority was satisfied the alleged misconduct was established. (Mrwebi tried to mislead the court about his consultation with Mzinyathi; and by not C providing a proper record.) (See [19] and [28] – [29].)

They were also satisfied Mrwebi was not fit and proper to practise as an advocate (see [29]).

But in their view the Gauteng Division was biased and misdirected itself on the appropriate sanction. This was suspension. (See [27] – [29] and [31].) D

The minority's view was that the Gauteng Division's order was correct. That was that Mrwebi should be removed from the roll. Mrwebi was unreliable, told repeated untruths and abused his position. (See [59] – [61], [63] – [64] and [67] – [68].)

The GCB's cross-appeal against the award of costs to Mzinyathi

The majority's holding was that the Gauteng Division exercised its costs E discretion correctly: the GCB continued with the proceedings even when it became aware there were no grounds for them (see [25]).

The minority's conclusion was that the GCB should not have been ordered to pay Mzinyathi's costs (see [73]).

This because the GCB was dutied to bring Murphy J's findings to the attention of the court, and it was not for the GCB to end the proceedings when the GCB F received Mzinyathi's explanation in his answering affidavit (see [73]).

Moreover, the Gauteng Division misdirected itself in not applying the principle that the GCB should not, in bringing a disciplinary matter to the attention of the court, be mulcted in costs (see [72] – [73]).

Order

The majority ordered that Jiba and Mrwebi's appeal be upheld, and the GCB's cross-appeal be dismissed (see [31]). G

The majority replaced the Gauteng Division's order, in relevant part, with an order dismissing the GCB's application to remove Jiba and Mrwebi from the roll of advocates, and suspending Mrwebi from practising as an advocate for six months (see [31]).

The minority would have ordered that the appeals of Jiba and Mrwebi be H dismissed. It would have upheld the GCB's cross-appeal, altering the Gauteng Division's order to one of no costs against the GCB (see [74]).

Cases cited

Benson v SA Mutual Life Assurance Society1986 (1) SA 776 (A): dictum at 781I applied I

Biowatch Trust v Registrar, Genetic Resources, and Others2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Booysen v Acting National Director of Public Prosecutions and Others2014 (2) SACR 556 (KZD) (2014 (9) BCLR 1064; [2014] 2 All SA 391): referred to

Botha v Law Society, Northern Provinces2009 (1) SA 227 (SCA): referred to J

2019 (1) SACR p156

Ferreira v Levin NO and Others; A Vryenhoek and Others v Powell NO and Others1996 (2) SA 621 (CC) (1996 (4) BCLR 441; [1996] ZACC 27): dictum in para [3] applied

Fine v Society of Advocates of South Africa (Witwatersrand Division)1983 (4) SA 488 (A): referred to

Freedom Under Law v National Director of Public Prosecutions and Others2014 (1) SACR 111 (GNP) (2014 (1) SA 254; [2013] 4 All SA 657): B referred to

General Council of the Bar of South Africa v Geach and Others2013 (2) SA 52 (SCA) ([2012] ZASCA 175): followed

General Council of the Bar of South Africa v Jiba and Others2017 (1) SACR 47 (GP) (2017 (2) SA 122; [2016] 4 All SA 443; [2016] ZAGPPHC 883): C reversed in part

General Council of the Bar of South Africa v Matthys2002 (5) SA 1 (E): referred to

Incorporated Law Society v Taute 1931 TPD 12: referred to

Jasat v Natal Law Society2000 (3) SA 44 (SCA) ([2000] 2 All SA 310): referred to

Kekana v Society of Advocates of South Africa D 1998 (4) SA 649 (SCA) ([1998] 3 All SA 577; [1998] ZASCA 54): dictum at 654E applied

Malan and Another v Law Society, Northern Provinces2009 (1) SA 216 (SCA) ([2009] 1 All SA 133): dictum in para [4] applied

National Director of Public Prosecutions and Others v Freedom Under Law2014 (2) SACR 107 (SCA) (2014 (4) SA 298; [2014] 4 All SA 147; [2014] ZASCA 58): E referred to

Society of Advocates of South Africa (Witwatersrand Division) v Cigler1976 (4) SA 350 (T): dictum at 357C applied

Society of Advocates of South Africa (Witwatersrand Division) v Edeling1998 (2) SA 852 (W): referred to

Toto v Special Investigating Unit2001 (1) SA 673 (E) (2000 (5) BCLR 553): F referred to

Vassen v Law Society of the Cape of Good Hope1998 (4) SA 532 (SCA) ([1998] 3 All SA 358; [1998] ZASCA 47): referred to

Zuma v Democratic Alliance and Others [2014] 4 All SA 35 (SCA) ([2014] ZASCA 101): referred to.

Case Information

N Arendse SC G (with T Masuku SC and S Fergus) for the first appellant, Ms Jiba.

M Rip SC (with R Ramawele SC) for the second appellant, Mr Mrwebi.

S Burger SC (with NT Mayosi) for the first respondent/cross-appellant, the General Council of the Bar of South Africa.

DB Ntsebeza SC H (with SX Mapoma) for the respondent in the cross-appeal, Mr Mzinyathi.

An appeal from the Gauteng Division, Pretoria (Legodi J and Hughes J).

Order

1.

I The appeal is upheld with no order as to costs.

2.

The counter-appeal is dismissed with costs, including the costs of two counsel.

3.

Paragraph 177.1 of the order of the court a quo is confirmed.

4.

Paragraphs 177.2.1 and 177.2.2 are set aside and replaced with the J following:

2019 (1) SACR p157

'The application for the striking-off from the roll of Ms Jiba and A Mr Mrwebi is dismissed with no order as to costs; however, as regards Mr Mrwebi, he is suspended as an advocate for a period of six months from the date of this order (15 September 2016).'

Judgment

Shongwe ADP (Seriti JA and Mocumie JA concurring): B

Introduction

[1] The General Council of the Bar (GCB), a voluntary association with legal personality in terms of its constitution, brought an application in terms of s 7(1)(d) of the Admission of Advocates Act 74 of 1964 (the Act) to...