Guest Column

Jiba racism accusation based on 'flimsy premise'

2018-07-24 15:10
Nomgcobo Jiba (Picture: Supplied)

Nomgcobo Jiba (Picture: Supplied)

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Craig Watt-Pringle

I write in my capacity as chair of the General Council of the Bar of South Africa (GCB), in response to a media statement issued by Advocates for Transformation (AFT) dated 17 July 2018 and to a City Press opinion piece written by my predecessor, whose term of office as the AFT-nominated chair of the GCB ended on 14 July 2018. 

In these respective pieces, the GCB stands accused of racially motivated bias, or at least of creating the reasonable perception thereof, in relation to its recent decision to apply for leave to appeal to the Constitutional Court in the matter involving Ms Nomgcobo Jiba and Mr Lawrence Mwrebi, both senior officials in the National Prosecuting Authority (NPA). 

As chair of the GCB and previously long serving member of its exco, I am in a position factually to rebut any imputation of racial bias, real or perceived and I do so below. 

The GCB is a voluntary association comprising the various "formal" Bars, or societies of advocates around the country. The Bars are also voluntary associations and their members are practicing advocates. The council itself (the GCB) comprises delegates from each of the Bars with representation roughly weighted according to their size, plus the ten members of the executive committee (exco). 

AFT has a presence at each of the Bars and is recognised by most as a 50% governance partner in the local Bar Council. In addition, the GCB exco comprises 50% AFT nominated members and that composition is mirrored in every sub-committee brought into existence by the GCB. Some of the smaller Bars have no AFT representation in the GCB, whilst others have no non-AFT representation, in both cases attributable to their small sizes and membership profiles.

The chairmanship of the GCB rotates biennially between AFT and the general membership. The national chair of AFT attends all GCB and exco meetings ex officio and has a voice but not a vote. However, until recently, the GCB almost invariably decided matters by broad, if not unanimous consent.

It is thus true to say that AFT is in partnership with the general membership of the Bar both at GCB and Bar level. This arrangement was conceived more than a decade ago for good reasons. Due to the legacy of our country's pre-democratic era, black advocates and women formed small minorities in a predominantly white and male Bar and this was reflected at Bar Council and GCB level.

Although AFT is not a racially exclusive organisation, it was deemed the appropriate body to represent the interests of these minorities in the Bar's governance structures, hence its entrenched position in Bar and GCB structures.

Turning to the issue at hand, on 10 July 2018 the Supreme Court of Appeal (SCA), by a majority of three judges to two, overturned the decision of two judges in the Pretoria High Court to strike from the roll of advocates Jiba and Mwrebi, both senior advocates employed in senior positions in the NPA, on the ground that they had shown themselves not to be "fit and proper persons" (the Jiba matter). 

On Saturday 14 July 2018, the GCB, which was the applicant in the original application and the respondent in the SCA, decided at its AGM to seek leave to appeal to the Constitutional Court against the majority judgment. Unusually in relation to the Jiba matter and others of its nature referred to below, this decision was not unanimous, but was carried by a vote of 18 to 12, with 2 abstentions. 

Neither I, nor the GCB, would ordinarily engage in a public forum concerning the reasons advanced at the meeting for the opposing views, but since both AFT and the former AFT nominated chair of the GCB have made statements critical of the GCB's decision in the public domain and citing racial bias as the reason for the decision, I consider that it is necessary to do so in response.

Never suggested that appeal lacks merit

Neither at the meeting nor in any subsequent statement issued by AFT has it been suggested that such an application for leave to appeal would lack merit. To the contrary, on both occasions AFT deemed merit an irrelevant consideration. 

That they did not argue on the basis of the merits is not surprising, given the division of judicial opinion in the matter. Four judges favoured striking off Jiba and Mwrebi, three not. As the three against striking off made up the majority in the higher court, it is their opinion that counts as matters stand, but that does not remove the fact of a significant divergence of judicial opinion in an important matter involving critical questions relating to standards of honesty and probity to be expected from officers of the court and specifically, state advocates.

AFT's arguments advanced at the GCB's AGM against applying for leave to appeal were essentially as follows. 

Firstly, that the GCB initiated the application to strike Jiba, Mwrebi and a third respondent, Mr Sibongile Mzinyathi in accordance with its judicially recognised role as "custos morum" – literally – "guardian of morals" or in context, "guardian of professional ethical standards". The GCB is thus not an ordinary litigant and having brought the Jiba matter before the courts, ought to leave it there. Any decision by the GCB to seek leave further to appeal this matter to the Constitutional Court would imply that it was going above and beyond its duty as custos morum and this raises questions as to its true motives and casts it as a perceived ally of public interest litigants such as Freedom Under Law (FUL).

Secondly and allied to the first point, it was suggested that a decision by the GCB relentlessly to pursue an appeal in the Jiba matter would be seen as political. 

Thirdly, it was suggested that the GCB would act inconsistently with a previous high profile matter involving a white senior counsel in the matter of General Council of the Bar of SA v Geach 2013 (2) SA 52 (SCA) in which the SCA, by a majority of three to two, declined to overturn the full bench decision of the Pretoria High Court not to strike Geach's name from the roll of advocates and despite the GCB respectfully disagreeing with the majority decision, the GCB failed to apply for leave to appeal to the Constitutional Court in that matter. This could be construed as evidence of inconsistency based on race, so it was contended.

The counter arguments at the meeting in favour of applying for leave to appeal were essentially the following:

Firstly, that there is no precedent nor principle, nor indeed logical reasoning according to which the GCB as custos morum ought to rest on its laurels even if of the opinion that there are merit based reasons to apply for leave to appeal. 

Secondly, that the divergence of judicial opinion in the Jiba matter; the importance of the principles involved and the high degree of public interest in ensuring that the most senior state advocates should be held to appropriate standards of honesty and probity mean that the GCB would fail in its duty if it did not, as custos morum, seek the intervention of the Constitutional Court to settle the controversy between the judges in the courts below. Furthermore, senior counsel who appeared for the GCB in the SCA provided the GCB with a report in which he expressed the strong and well-motivated view that the GCB ought to apply for leave to appeal.

Thirdly and allied to the previous point, it was argued that by stopping the litigation at a point when Jiba and Mwrebi were successful and thereby ignoring the strongly articulated views of both the Pretoria High Court Judges and the minority in Bloemfontein to the contrary, the GCB could validly be accused of taking an overtly political decision, precisely because it would not be founded upon the merits of the matter. 

Why not let the Constitutional Court decide, firstly, whether leave to appeal ought to be granted and secondly, the merits of the matter if leave be granted?

Finally, it bears mentioning that the vote in favour of applying for leave to appeal was not decided purely along racial lines. There were black members of the council who voted in favour and others who abstained.

Much has been made of the GCB's failure to apply for leave to appeal against the SCA's judgment in the Geach matter to the Constitutional Court. In doing so AFT fails to mention a number of pertinent facts which are with respect dispositive of any imputation of racial bias on the part of the GCB, then or now. Crucially, both of the GCB's critics ignore AFT's role in supporting without demur all decisions pertinent to the Geach matter and until now, in the Jiba matter as well.

'No racism apparent'

Since to make an accusation of racial bias – or let us call it what it was intended to signify: racism – is about the most serious charge that can be made in South Africa today, one would expect of AFT not to do so lightly or without a solid factual basis. Since the GCB's decision undeniably has merit regardless of the race of Jiba and Mwrebi, one would expect very clear evidence of racism, or even of a reasonable suspicion of bias before such an accusation could be made against those who voted for the application for leave to appeal. None is apparent from either AFT's press statement dated 17 July 2018 or the opinion piece in the City Press of 22 July 2018. 

Worse still, a thorough consideration of the facts shows that the flimsy premise on which the accusation of inconsistency is based does not withstand scrutiny.

In 2011 the GCB decided to intervene in the matter of the Pretoria Society of Advocates v Geach and twelve others. In the Geach matter, there were 12 members of the Pretoria Bar who had admitted professional misconduct relating to double briefing and overreaching (essentially overcharging) in Road Accident Fund matters. They were sanctioned by the Pretoria Society of Advocates, which then applied to the High Court to "note" the sanctions.

The GCB, of the opinion that the Pretoria Bar had been too lenient, intervened in the matter and sought orders striking each of the 12 members from the roll of advocates. It is worth noting that eight of the 12 members are white. The Pretoria Bar applied for the striking off of a 13th member, also white and the GCB supported that application.

On 29 September 2011, the 13th member and five of the others were struck from the roll by a full bench of three judges sitting as the court of first instance. Of the five members, three were black and two white. The court also increased the punishments of the remaining seven.

Not satisfied with this outcome, the GCB under the chairmanship of Rashied Vahed (now a judge of the High Court in KZN) applied for leave to appeal to the SCA, which was granted. 

In the SCA, the GCB sought orders striking the remaining seven as well. It is pertinent to note that of the seven, six were white. 

On 29 November 2012, the majority in the SCA (Nugent, Ponnan JJA and Mpati P) dismissed all of the GCB's appeals in relation to the seven, whilst the minority, (Wallis and Leach JJA) would have upheld the appeals in three cases, including that of Geach (a white senior counsel) and two other white members, and would have struck all three of them from the roll of advocates. 

The GCB did not seek leave to appeal to the Constitutional Court against the majority decision. It is however pertinent to note that at the time the GCB was led by an AFT-nominated Chair, Semenya SC, a highly respected member of the Johannesburg Bar.

Furthermore, AFT did not at the time suggest that the GCB should seek to take the matter further.

It is not surprising that the GCB did not seek leave to appeal because at the time the Constitutional Court only had appellate jurisdiction over the SCA in constitutional matters. Grounds that the GCB could have raised in the Geach matter did not obviously, if at all, implicate the bill of rights in the Constitution and there was therefore no right to apply for leave to appeal to the Constitutional Court at all. 

It was only with effect from 23 August 2013 that the Constitutional Court was granted appellate jurisdiction in all matters, and the GCB could have applied for leave to appeal to that court in a striking off matter.

This amendment to the Constitution in 2013 means that an application for leave to appeal to the Constitutional Court in the Jiba matter is competent without the need to raise constitutional grounds in the application for leave to appeal. 

GCB's appeal aimed at having errant members struck from roll

These facts are to say the least inconvenient to a thesis that the GCB was biased in favour of white practitioners in its handling of the Geach matter. The facts show that the GCB's appeal to the SCA was predominantly, albeit incidentally, aimed at having errant members struck from the roll of advocates – most of whom were white. The GCB and AFT were, as far as I have been able to ascertain, unanimous in their views regarding each stage of the Geach matter. 

In passing, the Jiba matter may present the opportunity for the Constitutional Court to resolve the differences in approach of the majority and minority judgments in the SCA in both the Geach and Jiba matters. In both cases the minority judges set a more stringent standard of conduct to be applied in such matters. This could not potentially alter the outcome of the Geach matter but could alter the state of the law. 

I now turn to the Jiba matter. 

In August 2014, following the handing down on 1 April 2014 of the decision of the SCA in the matter of Freedom Under Law v National Director of Public Prosecutions & Others, the GCB received a letter from the office of the NPA requesting it to consider bringing striking-off applications against three of the NPA's state advocates, namely Jiba, Mwrebi and Mzinyathi, in terms of section 7 of the Admission of Advocates Act.

The request was first considered by a sub-committee of three senior members of the Bar. The sub-committee recommended that the GCB should launch such an application. The NPA's request was next considered by the GCB's exco at a scheduled meeting in November 2014. At that meeting the GCB resolved that it had little option but to launch the application, given the trenchant criticism levelled against the three individuals in various High Court judgments and judgments of the SCA. 

The decision to launch the application was unanimous. As is customary, the exco meeting was attended by representatives of all Bars. They also unanimously indicated their support for a decision to launch the application. It is also worth noting that six of the representatives of the ten Bars present at the meeting are black. The national chair of AFT was also present. 

On 15 September 2016, the Pretoria High Court per Legodi J (Hughes J concurring) decided that there were sufficient grounds on which to strike both Jiba and Mwrebi from the roll of advocates. The application against Mzinyathi was dismissed with costs.

Jiba and Mwrebi obtained leave to appeal to the SCA and the GCB obtained leave to cross appeal on the costs order in relation to Mzinyathi. The decisions by the GCB to oppose Jiba's and Mwrebi's applications for leave to appeal and appeals respectively and to cross appeal, were unanimously taken. By necessary implication, these decisions enjoyed the full support of the AFT members present. 

In the SCA, Jiba and Mwrebi were successful in that the majority decided that the High Court had erred in relation to their cases, but the GCB was unsuccessful in its cross appeal. The minority of two judges not only found that both Jiba and Mwrebi ought to fail in their appeals, but that there were grounds for striking which the Pretoria High Court had erred in rejecting. The minority would also have upheld the GCB's cross appeal in relation to costs. (The GCB's contention there is that when the GCB acts as custos morum, the normal rule that costs follow the result does not apply and that costs orders are only made against it if its decision to pursue the matter was in bad faith or grossly unreasonable. The Pretoria High Court made no such finding in relation to the GCB's application against Mzinyathi.)

Suffice it to say that the Constitutional Court in Paulsen v Slip Knot Inv 777 (Pty) Ltd 2015 (3) SA 479 (CC) included amongst others, the following typical grounds of appeal to that court:

"(a) The Supreme Court of Appeal may have expressed itself on the matter by a narrow majority;

(b) A minority view in the Supreme Court of Appeal may be quite forceful;

(c) Different divisions of the High Court may have expressed divergent views on the point, with no pronouncement on it by the Supreme Court of Appeal". 

The City Press article has gone so far as to suggest that since the president previously decided to suspend any possible disciplinary enquiry into Jiba until the GCB's matter was finally decided, the GCB is by its actions further delaying any such action.

The article fails to consider that any decision by the GCB not to pursue a potentially meritorious appeal which is motivated by a desire to hasten disciplinary proceedings against Jiba and Mwrebi is far more likely to smack of manipulation on the part of the GCB, than a decision based on merit to apply for leave to appeal. The president must, with respect, do as he deems appropriate and the GCB must do likewise. 

- Craig Watt-Pringle SC is chair of the General Council of the Bar of South Africa.

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