The interpretation and application of s 7 of the Admission of Advocates Act does not of itself alone raise a constitutional issue

September 1st, 2019
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General Council of the Bar of South Africa v Jiba and Others 2019 (8) BCLR 919 (CC)

In the case of the General Council of the Bar of South Africa v Jiba and Others 2019 (8) BCLR 919 (CC) the Constitutional Court (CC) was tasked to look at a fitness matter, whether the respondents Nomgcobo Jiba, Lawrence Mrwebi and Sibongile Mzinyathi – who are all advocates – were fit to practice. The General Council of the Bar of South Africa (GCB) a body mandated by the Admission of Advocates Act 74 of 1964 to institute disciplinary proceedings against errant advocates. The GCB’s statutory duty is to place before the court, evidence of a practitioner’s misconduct to enable the court to exercise its inherent powers to discipline advocates. The respondents were admitted and enrolled by the authority of the High Court. They were all senior officials in the National Prosecuting Authority (NPA), established in terms of s 179 of the Constitution and the National Prosecuting Authority Act 32 of 1998 (NPA Act).

The misconduct charge against the respondents – that they were no longer fit and proper to practice – arose from the conduct in litigation where they deposed to affidavits, which were presented to the court as evidence and their failure to comply with court rules and directives. The decision taken by Ms Jiba and Mr Mrwebi in the exercise of public power, gave rise to litigation in which those decisions against General Richard Mdluli were taken by Mr Mrwebi. The Freedom Under Law, a non-profit organisation, instituted a review application, impugning this decision.

Ms Jiba and Mr Mrwebi were cited as parties in those proceedings. At the time the decision was taken, Ms Jiba was the Acting National Director of Public Prosecutions. In opposing the relief sought in those proceedings, Ms Jiba and Mr Mrwebi filed affidavits that sought to justify the decision. But they failed to submit, to the Registrar of the Gauteng Division of the High Court, a copy of the record of the proceedings that led to the withdrawal, as required by r 53 of the Uniform Rules of Court. This, together with the failure on their part to timeously file opposing papers, caused a long delay in the adjudication of that review application.

In its judgment the High Court was highly critical of the conduct of the respondents in relation to those proceedings. Importantly the High Court found that Ms Jiba and Mr Mrwebi had lied in their affidavits and that they had suppressed information unfavourable to their defence with the objective of misleading the court. Ms Jiba and Mr Mrwebi appealed against the condemning judgment to the Supreme Court of Appeal (SCA). The SCA dismissed the appeal and upheld the factual findings of the High Court. This meant that the respondents were, as advocates, not measuring up to the required standard of integrity and honesty.

The second decision taken by Ms Jiba to authorise the laying of charges against Major General Johan Booysen under the Prevention of Organised Crime Act 121 of 1998 (Booysen v Acting National Director of Public Prosecution and Others [2014] 2 All SA 391 (KZD)). This decision too was challenged in a review application that was instituted in the KwaZulu-Natal Local Division in Durban. Ms Jiba was cited as a respondent and in that matter too, she failed to submit the relevant record to the Registrar as was required by r 53. In opposition to the review, she deposed to an affidavit. Following an analysis of the evidence, the High Court’s judgment suggested that Ms Jiba was found to have been untruthful in some aspects of her evidence.

Mr Mrwebi and Mr Mzinyathi took no part in the Booysen matter and the adverse credibility findings made there did not apply to them. The same applies to the matter concerning former President Jacob Zuma (Zuma v Democratic Alliance and Others [2014] 4 All SA 35 (SCA)). Further litigation ensued in which the contest revolved around the ambiguity of the order. The litigation commenced in the Gauteng Division of the High Court in Pretoria (GP) and ended in the SCA. It was in the second judgment of the SCA that strong criticism was levelled against Ms Jiba. She was described as having been deliberately unhelpful and having ‘been less than truthful’. Following the judgment of the SCA in Freedom under Law v National Director of Public Prosecutions and Others [2013] 4 All SA 657 (GP) (the Mdluli case) the NPA approached the GCB with a request that it should institute disciplinary proceedings in the High Court against the three advocates. The credibility findings made against them in that matter were cited as basis for disciplinary proceedings.

Having acceded to the NPA’s request, the GCB instituted these proceedings in the GP in April 2015. The relief sought by the GCB was that the respondents should be struck off the roll of advocates, or that they be suspended from practising as advocates for a period determined by the High Court. In support of the claim the GCB relied mainly on the judgment in the Mdluli, Booysen and Zuma matters. The GCB’s founding affidavits quoted copiously from each of those judgments and cited credibility findings made against each respondent. On the strength of the findings to the effect that the respondents lacked integrity and had given false evidence under oath, the GCB asserted that the respondents were not fit and proper persons to continue to practice as advocates as contemplated in s 7(1)(d) of the Admission of Advocates Act.

The respondents opposed the application and all of them filed papers in answer to the case pleaded by the GCB. The matter was heard by two judges. The High Courts’ judgment was written by Legodi with Hughes JJ concurring. In a comprehensive judgment, the High Court identified the test applicable to the determination of whether an advocate should be suspended or struck from the roll on the ground that they are ‘not a fit and proper person to continue to practice as an advocate’. Having identified the right test, the High Court proceeded to evaluate the evidence placed before it. Special attention was paid to the remarks and factual findings made against each advocate in the explanation furnished by each advocate in relation to the misconduct raised. With regard to Ms Jiba, the High Court held that no misconduct was established in respect of the Booysen and Zuma matters.

However, the High Court found that misconduct was established against her in relation to the Mdluli matter. The court held that she had given false evidence under oath and that in some respects she tendered evidence that was misleading to the court. The High Court described her as an ‘unrepentant and dishonest person’. Arising from the Mdluli matter, the High Court found that misconduct had been proven against Mr Mrwebi. The court held that he was untruthful in asserting that he took the decision to withdraw charges against General Mdluli on 5 December 2011.

Mr Mrwebi was found to have lied in some aspects of his evidence. The court concluded by observing that Mr Mrwebi was patently dishonest in his testimony before a disciplinary inquiry where he was called as a witness. The High Court did not only find that misconduct was established against Ms Jiba and Mr Mrwebi but also concluded that they were not fit and ‘proper persons’ to continue to practice. Because both advocates were shown to be dishonest and without integrity, the High Court ordered that their names be struck from the roll.

With regard to Mr Mzinyathi, the High Court found that, though Murphy J in the Mdluli matter had made negative observations about his conduct, no misconduct was established. The High Court ordered the GCB to pay his costs of application. Ms Jiba and Mr Mrwebi appealed to the SCA and the GCB cross-appealed against the costs order granted in favour of Mr Mzinyathi. As regards Ms Jiba, the majority held that misconduct was not established. Mr Mrwebi was concerned that the majority accepted that misconduct was established against him. However, the majority held that there was no proof of dishonesty on his part, because he did not gain from the misconduct.

In determining whether Mr Mrwebi should be struck off the roll, the High Court took into account General Mdluli’s personality. The majority held that the High Court ‘did not bring its unbiased judgment to bear on the question before it, and materially misdirected itself’. Consequently, the majority held that Mr Mrwebi should have been suspended from practice and ordered that he be suspended for a period of six months, antedated to 15 September 2016 on which the High Court delivered its judgment. Regarding Mr Mzinyathi, the GCB did not challenge the High Court’s conclusion that no misconduct was established against him. In the SCA, the GCB’s cross appeal was restricted to the question of costs. The GCB argued that, owing to the fact that the litigation was initiated in the interest of the public and its members, the High Court was wrong to apply the normal rule that costs follow the result. The GCB sought to have the costs order reversed.

Mr Mzinyathi countered this argument by submitting that the High Court had correctly exercised its discretion on costs and the fact that the application acted as custos morum of the profession did not insulate it from paying costs. The minority held an opposite view on all issues. They too, however, endorsed the three-stage standard followed by the High Court in adjudicating the matter. The only material point of difference between the minority and the majority in the SCA was on the assessment of facts, pertaining to the merits of the matter.

The CC said that for leave to be granted in that court, the applicant must meet two requirements –

  • that the matter must fall within the jurisdiction of the CC; and
  • that the interest of justice warrants the granting of leave.

For the CC’s jurisdiction to be engaged, the matter must either raise a constitutional issue or an arguable point of law of general public importance.

The CC, however, added that the interest of justice inquiry, on the other hand, involves the weighing up of varying factors. These include reasonable prospects of success which, although not determinative, carry more weight than other factors.

The CC said the difference outlined between the majority and the minority in the SCA, taken together with the decision of the High Court impelled the granting of leave. The antecedent question that was raised was whether the GCB had established jurisdiction. The GCB claimed for the first time in the CC that the matter concerning the respondents raised constitutional issues and an arguable point of law of general public importance. The submission that issues are raised was premised on the sole assertion that the matter requires the interpretation and application of the NPA Act which is a legislation contemplated in s 179 of the Constitution.

The CC said that there was no merit in the contention that the matter involved the interpretation of the NPA Act. And that the claim advanced by the GCB does not require the interpretation and application of the NPA Act. The court added that the claim was a self-standing claim, based as it is within the four corners of the Admission of Advocates Act. The NPA Act does not regulate the admission of advocates. The court said a careful reading of the GCB’s pleading revealed that its claim was based solely on s 7(1)(d) of the Admission of Advocates Act, and the GCB sought to have the respondent’s names removed from the roll of advocates on the ground that they were not fit and proper persons to continue to practice as advocates.

The court said none of these matters raised a constitutional issue. The interpretation and application of s 7 of the Admission of Advocates Act does not of itself alone raise a constitutional issue. Nor did the applicant require that s 7 be constructed in terms of s 39(2) of the Constitution which demands that legislation be constructed in a manner that promotes the objects of the Bill of Rights. The CC held that the GCB had not established that the matter fell within its jurisdiction and, therefore, said the appeal cannot be entertained.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2019 (Sept) DR 26.