Truth about decision on Jiba appeal

2018-07-22 06:05
Nomgcobo Jiba

Nomgcobo Jiba

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This is my personal perspective. I spent two years of my professional life at the Asset Forfeiture Unit at the National Prosecuting Authority (NPA), but I have never met advocates Nomgcobo Jiba and Lawrence Mrwebi. I have never spoken to either of them. Whether they are fit and proper to remain advocates is not for me to decide, but for the courts. It is not for the General Council of the Bar (GCB) or a political party to say. And it is not a commentary on the decision of the Supreme Court of Appeal (SCA).

But when a wrong is perpetrated, ostensibly in that one-size-fits-all refugee camp called “public interest”, some of us are incapable of keeping quiet, despite fearing victimisation.

Mainstream media in South Africa no longer just reports news. Now its primary focus is to fight causes. Lately, it does so not only through traditional platforms like newspapers, journals, television and online publications. Social media platforms have also become its potent weapons through which to influence public opinion. With that, the steady creep towards the capture of society’s normative beliefs edges closer.

To that end, the line between news, comment and opinion has been blurred beyond recognition. Character assassination of those reviled for not falling in line with whatever cause tickles media fancy at a given time (for now “state capture”) passes for “investigative journalism”. Fearing the bludgeon of “interference with independence of the media”, otherwise discerning consumers turn a blind eye, while the less discerning lap it up and demand more of the same.

The danger in this is that news media, in all its guises, is not a disinterested amorphous entity. Powerful political and economic interests lie behind it. For every cause the media promotes, there are warm bodies profiting politically and economically.

One recent story has been carved out of a bigger story by mainstream media as part of fighting its “state capture” cause.

It is in the forlorn hope of correcting the wrong perception created through that media coverage that I write this piece because I was in the middle of it all. I do expect my message to be distorted to fit snugly into the cause the media has popularised. Nonetheless, quiet I shall not remain.

On July 10 this year, the SCA handed down a judgment in which it found that Jiba, deputy national director of the NPA, had not conducted herself in a manner that warranted being struck from the roll of advocates. It also held that Mrwebi, NPA special director, deserved no more than a suspension for his conduct. Two of the five judges disagreed.

In the final analysis, the conduct of which the two are accused involves making inaccurate averments on affidavits and, essentially, incompetence. They explained this in affidavits, but neither the high court nor two of the five judges in the SCA believed them.

I chaired the GCB annual general meeting (AGM) last Saturday at which the decision was made to appeal to the Constitutional Court against the majority judgment of the SCA. After extensive debate on the issue I put the matter to a vote. A total of 18 delegates voted in favour of the GCB appealing to the Constitutional Court, 12 delegates voted against and two abstained.

All this is now in the public domain. What is not known is that I was, and remain, one of the 12.

Council comprises delegates from 12 constituent Bars around the country. The biggest Bars have four delegates each, the next in size have three, the smaller have two and the smallest has one.

In terms of the GCB constitution, where a constituent Bar is to be represented by more than one delegate, at least 50% of those delegates must, wherever possible, be Advocates for Transformation (AFT) members. Neither the Cape Bar nor the Johannesburg Bar were thus represented. Between them they commanded eight votes, which they cast in favour of appealing.

I allowed their votes to stand because the issue of representation at Council is currently the subject of mediation by a retired chief justice.

What is troubling is that the 32 votes cast appear to exceed the number of delegates possible at Council as there can only be 29 delegates on the current configuration of constituent Bar representation at Council. Whether that renders the decision of the GCB reviewable is a matter the GCB and AFT must decide.

I detail here what troubles me about the GCB decision, which I conveyed to the AGM. As the GCB, Pretoria Bar and AFT have all discussed proceedings at the AGM in the public domain through media statements and radio interviews, I find comfort in the knowledge I am not breaching the rule against discussing Bar issues in the press.

First, the role of the GCB in striking off applications is that of custos morum (literally, custodian of the morals of advocates). That role entails placing the facts before the high court so the court (and only the court) can decide whether those facts warrant a striking off, a suspension or no sanction at all.

To place the GCB’s decision in perspective, this is the first time ever the GCB has appealed to the Constitutional Court in a striking off matter. In 2013, three of five judges in the SCA preferred to suspend rather than strike off senior members of the Pretoria Bar who had been found guilty by their Bar of multiple counts of double-briefing (accepting a brief to run more than one trial on one day, a physical impossibility) and overcharging (charging more than the work done justifies, and charging for work not done). The GCB is still unhappy with that decision, but it never appealed to the Constitutional Court.

In September 2012, the Constitutional Court substantially reduced the fees charged by a senior white male advocate and his white male junior in what was patent overreaching, a misconduct that entails an element of dishonesty. The senior had charged more than R453 000 on appeal in a case he had argued in the lower court. The Constitutional Court reduced it to R180 000. His junior had charged more than R263 000. He, too, had been involved in the lower court. The Constitutional Court reduced his fee to R120 000.

The Constitutional Court criticised the charging of what it termed “excessive” fees. The GCB heard no evil, saw no evil. Its custos morum role was suspended.

Some senior white male members of the Bar in Johannesburg have done things that would, in a normal society that applies the same standard to all its members, trigger an approach to the high court to consider a striking off. I hear similar conduct has occurred in Pretoria. The rules of the GCB prohibit me from mentioning their names and the conduct involved. These are known to senior members who have served, as I have, in the Bar Council, and some in the GCB.

When some of us raise these issues, the response is lukewarm and, if dealt with at all, the leniency towards senior white males is astonishing. Neither the Bar Council nor the GCB intervenes in the exercise of its custos morum role. Juniors tell me, typically on condition of anonymity, that they are victimised if they dare complain. Ironically, a rule of the GCB makes it a duty of every member of the Bar to report unprofessional conduct to the Bar Council.

By contrast, Advocate Menzi Simelane, for example, a former national director of public prosecutions, is being hounded out of the profession by the GCB at the instance of a political party, the DA, which took the matter to the Constitutional Court, for allegedly misleading the Ginwala inquiry at which he testified as a witness, and which was not even about his conduct.

The point is that the GCB’s role in matters of striking off is that of custos morum. That role is similar to that of amicus curiae, or friend of the court, which has also lost its true meaning lately despite both the SCA and the Constitutional Court each handing down a judgment specifically explaining the role of an amicus.

The role of a custos morum is confined to assisting the court by placing facts before a court and analysing the law to which those facts apply. All this is aimed at assisting the court to decide whether to strike off an advocate. Once done, its role is fulfilled.

When the GCB starts actively litigating a case by launching appeal proceedings as an ordinary litigant, it is no longer performing the custos morum role because a custos morum (like an amicus curiae) has no right to lodge an appeal, except in special circumstances the Constitutional Court has laid down, and which do not arise in the Jiba and Mrwebi matter.

The fact that the GCB has previously appealed from the high court to the SCA in matters of striking off (a relatively rare occasion) does not make the practice right in law, especially when it has never occurred to the respondent in such cases to take the point, or for the appeal court to raise the matter of its own accord.

The GCB has overplayed its hand in this case, and in doing so has descended inexorably into the political arena of a political party and a politically motivated narrative. So demonstrably political is this decision that we are likely to see the DA or a politically motivated non-profit organisation intervening in these proceedings should the GCB’s standing be questioned.

The high court and the SCA did not make a political decision. The DA is politically motivated in its pursuit of these two. The GCB’s decision is fraught with political flavour, whether or not those who voted in favour of pursuing the appeal intended it.

The inconsistency of the GCB in these matters is palpable and plays right into the very “race card” narrative of which the media accuses AFT.

What could be so intolerable about making inaccurate statements under oath, that stealing money from the state is not, that must be punished by a striking off, but the stealing of state money must not?

By pursuing this appeal to the Constitutional Court, for the first time in living memory, when it did not do so in the overreach cases involving senior white male counsel, the GCB has denied Jiba and Mrwebi equal protection and equal benefit of the law, as decreed by section 9 of the Constitution.

Lost in all this overzealous #CountryDuty-esque pursuit by the GCB of these senior advocates perceived to be political agents at the NPA is the fact that the purpose of disciplining advocates is not punitive but remedial.

There is another consideration that, in my view, cannot rationally and reasonably be ignored. The Legal Practice Act confers the custos morum power hitherto enjoyed by the GCB on the Legal Practice Council scheduled to come into effect in November. That body may, if it chooses, bring striking off proceedings against Jiba and by way of direct access to the Constitutional Court if it believes that to be in the interests of justice. It will do so without running the risk (given its broad composition) of being seen as playing politics with people’s professional lives – a risk the GCB cannot avoid.

The president is also reportedly looking into Jiba’s fitness for office. According to a respected journalist (Karyn Maughan) in a BusinessDay article on July 12, the president has put that inquiry on hold pending finalisation of this matter in the courts. In an application by the DA to force the president to act expeditiously against Jiba, the Cape High Court in May found nothing irrational in the president awaiting the finalisation of this matter in the courts.

By dragging the matter on in the Constitutional Court, the GCB is effectively impeding the president in his inquiry, or, if one were to be cynical, providing an excuse for him to do nothing about Jiba’s fitness.

In December last year, the high court found that former president Jacob Zuma acted irrationally and unlawfully in failing to take steps against Jiba after criticism by the courts about her conduct in the performance of her duties as prosecutor. Zuma took that judgment on appeal but it has reportedly been put on ice pending finalisation of this matter by the courts. Again, the GCB dragging the matter out in the Constitutional Court has the effect of delaying justice in respect of Zuma.

In the final analysis, the GCB has, in my view, pursued this case in the Constitutional Court not in the exercise of its custos morum role. That is a mere prop. The real reason is political. It is no co-incidence that another senior black advocate at the NPA (Simelane) is also being hounded out of the profession by the GCB at the insistence of the same political party. Politics and race loom larger than the GCB cares to acknowledge.

If pointing out a glaring pattern of black advocates being relentlessly pursued for conduct that senior white male advocates are not is “playing the race card”, then I shall play all the race cards in my stack with neither demur nor apology.

Since when has incompetence, as perceived by a political party with a political axe to grind, constituted a ground for striking an advocate off? The answer is: since the GCB started playing politics with people’s professional lives. With that, I cannot associate myself.

- Ngalwana SC is with the Duma Nokwe Group of Advocates and a former chair of the General Council of the Bar of South Africa.

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