Suspended deputy NPA boss Nomgcobo Jiba testifying before the Mokgoro inquiry. (Jeanette Chabalala, News24)
Multimedia · User Galleries · News in Pictures
Send us your pictures · Send us your stories
If context matters at all in law, then the context of a corrupted NPA and the need for its reconstruction should alone have justified the assumption of jurisdiction for the Constitutional Court, writes Serjeant at the Bar.
Thanks to our energetic Public Protector
and her blockbuster press conferences where many South Africans watch with
great expectation to hear the names of Malusi Gigaba, Faith Muthambi, Mosebenzi
Zwane, Tom Moyane, Anoj Singh and Brian Molefe being uttered in her reports, sadly
to no avail, much discussion of other important legal developments gets precious
Take the recent decision of the
Constitutional Court in the matter between the General Council of the Bar (GCB)
and Advocates Nomgcoba Jiba and Lawrence Mrwebi. Recall that the Bar Council
had sought to have the two senior members of the NPA struck off the roll of
advocates. The basis of the GCB's case was that in terms of Section 7 of the
Admissions Act the two, thanks to a litany of complaints and adverse findings
from judges, were not fit and proper to remain on the roll of advocates.
On appeal against an adverse finding by the
High Court, the Supreme Court of Appeal (SCA) split 3-2 in favour of Jiba and
Mrwebi; hence the appeal by the GCB to the Constitutional Court.
The first order of business at the Constitutional
Court (the only order of business as it turned out) was to determine whether it
had jurisdiction to hear the appeal. At issue was the basis of the respective
findings of the judges of the SCA in that the division between the two judgments
turned on whether evidence of misconduct justified a finding that neither Jiba
nor Mrwebi were fit and proper, that is lacked the requisite integrity to
remain on the roll of advocates.
The Constitutional Court held, correctly, that
no constitutional provision had been shown to be trenched by the dispute
between the parties. So the jurisdictional dispute shifted to whether the
matter raised an arguable point of law of general public importance which ought
to be considered by the court.
Now before proceeding with our analysis, it
should be noted that this provision (s167(3))b)(ii) of the Constitution) was
introduced to grant the Constitutional Court extended jurisdiction; that is to
be the apex court for all legal issues, thus obviating the need for litigants to
show that the dispute involved a constitutional matter as defined. It was
clearly designed to afford the Constitutional Court considerable flexibility in
deciding which cases to hear beyond staple constitutional fare.
In this case, the court declined to hear
the appeal on the grounds of lack of jurisdiction, even in terms of its
extended jurisdiction. On behalf of an unanimous court, Justice Chris Jafta said:
"Apart from the fact that the argument is cast
in terms wider than the case pleaded here, it has no substance. First, the
cause of action advanced by the GCB was that the respondents’ names should be
struck off the roll because they are no longer fit and proper persons to
continue to practise as advocates. This
cause of action was based on section 7(1)(d) of the Admission Act. Therefore,
the standard relevant to the present inquiry is limited to the determination of
whether an advocate is a fit and proper person to continue to practise."
In amplification of his approach, Justice
Jafta said: "The proposition that the Supreme Court of Appeal here was
sharply divided on the standard to be applied in matters involving dishonesty
is not correct. The divergence between the majority and the minority did not
flow from the application of legal principles. It stemmed from an evaluation of
the facts. In relation to Ms Jiba, the majority found that no misconduct was
established in the first place. The issue of dishonesty did not arise at all. With
respect to Mr Mrwebi, although the majority found that misconduct was proved it
held that he was not dishonest. For its part the minority found that the facts
had established dishonesty on the part of both respondents."
The cases cited by the Constitutional
Court in support of its jurisdictional findings mainly turned on the question
of a constitutional matter and not in respect of a matter of law of general
public importance. The cited case which did canvass this question, being
Booysen, turned on the fact that the issue had not been foreshadowed in
argument at the eventual oral argument. In the GCB case, the heads of argument filed
raised this point pertinently; hence no one was ambushed at the hearing.
A reader will struggle to divine clear
reasons as to how the application of the appropriate standard for a legal
practitioner to have rights of admission to a court of law and in particular
senior members of the NPA does not turn fundamentally on a law of general public
importance as was clearly intended as part of its purpose by the amending
drafters. If context matters at all in law, then the context of a corrupted NPA
and the need for its reconstruction should alone have justified the assumption
If this decision was not material for
confusion, a few days later the Constitutional Court handed down a set of judgments
in a competition appeal case of Competition Commission v Media 24. Four judges gave
the most extensive application of what constitutes a constitutional issue and
three found that the dispute raised a question of a law of general public importance.
Full disclosure – this columnist knows nothing about the arcane economic
concepts being debated. However, simply reading the treatment of jurisdiction contained
in these two cases, one is left with a troubling thought about the increasing
jurisprudential incoherence within the Constitutional Court. And that is worthy
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
The couple will leave the family in March.
The collaboration celebrates Black History Month in the U.S.
This is fuelling dangerous drug resistance in children.
All courtesy of the International Public Art Festival.
They are now engaged.
Some packages have increased, others not.
It seems that children affected by the virus are in the minority. Why is that?
Cape WinelandsO'Dwyer Personnel
Atlantic SeaboardShimansky Jewellers
DurbanvilleZaPOP Media (Pty) LtdR1 000.00 Per Month
R 2 500 000
R 2 395 000
R 2 630 000
We subscribe to the Press Code.
You choose what you want
News24 on Android
Get the latest from News24 on your Android device.
Terms and Conditions
24.com Terms and Conditions - Updated April 2012
Creating your profile will enable you to submit photos and stories to get published on News24.
This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.