General Bar Council mum on request for Abrahams' removal from advocates' roll

2016-11-10 20:50
Shaun Abrahams (Nico Gous, Netwerk24)

Shaun Abrahams (Nico Gous, Netwerk24)

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Cape Town - The General Council of the Bar (GCB) would not comment on requests to strike National Director of Public Prosecutions (NDPP) Shaun Abrahams off the roll of advocates, and has opted to instead explain how complaints are dealt with.

"It would be unpardonably louche of the GCB, or any member of its executive committee, to comment on the merits of these complaints at this stage," the GCB said on Thursday.

The EFF and ANC stalwart Mathews Phosa asked the GCB to establish whether or not Abrahams was a fit and proper advocate and whether his actions should get him thrown off the highly prestigious roll of advocates.

This was after the debacle over fraud charges against Finance Minister Pravin Gordhan, and former SA Revenue Service (Sars) officials Ivan Pillay and Oupa Magashule for which the three were to appear in court on November 2.

Abrahams said on October 31 that he decided to override his colleagues and not go ahead with the charges after considering a 2009 memorandum from a legal executive at Sars which found that there were no reasons why Pillay could not retire early and be re-appointed, as was the issue.

The backlash against Abrahams was immediate, but he has said he will not resign.

Court process

Instead of providing an update on the requests against him, the GCB explained the process it went through when complaints were received.

It said:

- The chairperson considers whether or not the complaint discloses a prima facie case.

- If it does, the chairperson would forward the complaint to the advocate who is the focus of the complaint for a written response. The advocate is usually given two weeks to respond. An extension of this period can be applied for. 

- On receiving the response, if a prima facie case remains, the chairperson would appoint a special committee of three senior advocates to consider the complaint and the response and make recommendations on how to deal with the matter going ahead. 

- Upon receiving the recommendations, the chairperson would place the matter before the executive committee of the GCB for discussion and decision. The National Executive consists of Jannie Eksteen SC (chair); Renata Williams SC (deputy chair); Rashid Vahed SC (vice chair); Mahlape Sello (honorary secretary); Soraya Hassim (assistant honorary secretary); Tayob Aboobaker SC; Pat Ellis SC; Timothy Bruinders SC; Dumisa Ntsebeza SC; Kgomotso Moroka SC; Ex officio: Norman Arendse SC (past chair); Archie Findlay SC (Convenor: NBEB).      

- If the committee of three senior counsel recommends that an application to the High Court should be launched for the striking or suspension of the advocate, and the executive committee accepts the recommendation, the chairperson would instruct a firm of attorneys to brief counsel to prepare application papers in that regard to the High Court.  

- The test in such applications is whether the advocate in question is no longer a fit and proper advocate. "That is a value judgment not open to discretion. It entails a finding of an element of dishonesty or character flaw in the advocate concerned," the GCB said.

- If the court finds that the advocate acted dishonestly, or has a character flaw that, in the court's view, was likely to recur, then the court would find that the advocate was not fit and proper to remain on the roll of advocates.  

- Once this was found, the court could decide whether or not to impose a sanction striking the advocate's name off the roll of advocates or suspend the advocate from practice.  

"This is purely the court's process and does not require Parliament's intervention," the GCB said.

Abrahams' deputy Nomcobo Jiba's name was recently recommended to be struck from the roll of advocates, along with special director of public prosecutions Lawrence Mrwebi. This was according to a judgment of the High Court in Pretoria. The two, who are on special leave, are appealing the decision.

Read more on:    npa  |  shaun abrahams

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