The General Council of the Bar of South Africa was successful in an application to the High Court, Gauteng Division, Pretoria, to have South Africa’s National Prosecuting Authority’s Deputy National Director, Advocate Nomgcobo Jiba and Special Director of Public Prosecutions, Advocate Lawrence Sithembiso Mrwebi, struck from the roll of advocates.
Jiba and Mrwebi made the controversial decision to withdraw fraud, corruption and murder charges against suspended crime intelligence boss Richard Mdluli. These NPA officials have previously been criticized, including by High Court judges and the Supreme Court of Appeal, for their actions in the Mdluli and other matters including the attempted prosecution of suspended KwaZulu-Natal Hawks head, Major-General Johan Booysen on racketeering charges.
Section 7 (1) (d) of the Admission of Advocates Act authorises a court to remove an advocate from the roll of advocates, if satisfied that he or she is not a “fit and proper” person to continue to practice as an advocate. The same test applies to attorneys.
The Honourable Mr Justice Legodi remarked: “Section 7 (1) (d) of the Admission of Advocates Act authorises a court to remove an advocate from the roll of advocates, if satisfied that he or she is not a “fit and proper” person to continue to practice as an advocate. The test is a contemplation of a three staged inquiry, as is also the case in applying the provisions of section 22 (1) (d) of Attorneys Act 53 of 1979. First, the court must decide if the alleged conduct complained of has been established on a preponderance of probabilities. This is a factual inquiry.
Secondly, it must consider if the person concerned is in the discretion of the court not a fit and proper person to continue to practice. This involves a weighing up of the conduct complained of against the conduct expected of a fit and proper person to practice. This is a value judgment consideration. Thirdly, the court must inquire whether in all of the circumstances the person in question is to be removed from the roll or whether an order of suspension from practice would suffice. This is also a matter for the discretion of the court. In deciding on what course to follow, the court is not first and foremost imposing a penalty. Rather, the main consideration is the protection of the public..”
The complaints again Jiba of her handling of the Mdluli case included the following:
“108.1 That she did not file a full and complete rule 53 record notwithstanding an order compelling her to do so.
108.2 That she did not file an answering affidavit by the due date and had to be directed to do so by the Deputy Judge President and in addition that she did not file written heads of argument timeously;
108.3 That her reasons for the various delays were sparse and unconvincing;
108.4 That her conduct in particular is unbecoming a person of such high rank in the public service.
108.5 That she did not disclose to the court that on 13 April 2012, she had received a 24 page memoranda from Adv. Breytenbach and that she deliberately attempted to mislead the court.
108.6 That she did not make a full and frank disclosure in order to refute, explain or ameliorate serious allegations made against her.
108.7 That the SCA” (Supreme Court of Appeal) “had also criticised her conduct.”
From a reading of the judgment one wonders if she is not guilty of perjury. Be that as it may, the learned Judge ordered as follows:
177.2 The application against Jiba (first respondent) and Mrwebi (second respondent) with regard to their handling of Mdluli’s (FUL) case is hereby granted and an order is hereby made as follows:
177.2.1 The names of Ms Nomgcobo Jiba (first respondent) and Mr Lawrence Sithembiso Mrwebi (second respondent) are hereby struck from the roll of advocates;
177.2.2 The first and second respondents to pay the costs of the application the one paying the other to be absolved and such costs to include the costs of two counsel.”