Nothing stopping Jiba, Mrwebi returning to work - NPA

2018-07-10 16:41
Nomgcobo Jiba (File, News24)

Nomgcobo Jiba (File, News24)

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There is nothing stopping Nomgcobo Jiba and Lawrence Mrwebi from returning to work, the National Prosecuting Authority said on Tuesday.

"The NPA is pleased with the judgment of the SCA, as it vindicates the rule of law," NPA spokesperson Luvuyo Mfaku told News24.

"We firmly believe that there's nothing precluding them from resuming their responsibilities, however, the NDPP as the employer will be engaged on the way forward."

On Tuesday morning, the Supreme Court of Appeal overturned a high court ruling that called for Jiba and Mrwebi to be struck off the roll of advocates.

READ: SCA overturns ruling that struck Nomgcobo Jiba, Lawrence Mrwebi off the roll of advocates

Jiba and Mrwebi were struck off the roll on September 15, 2016, by Judge Francis Legodi.

Legodi agreed with the General Council of the Bar (GCB) of SA that they were "not fit and proper" for their jobs.

However, in the majority judgment delivered earlier on Tuesday, the SCA found that the GCB could not establish any misconduct on the part of Jiba.

The SCA also said that the high court had misdirected itself in striking Mrwebi from the roll. The court also failed to consider why suspension was not an appropriate sanction, it said.

The high court ruling came after the pair's decision to drop charges against former Crime Intelligence head Richard Mdluli, who was facing a number of charges, which included defrauding a secret slush fund.

The SCA said, when the high court gave its ruling, it described Mdluli and detailed his personality. It also characterised him in an "egregious manner, as if he was already convicted of the allegations against him".

"This characterisation, in my view, negatively influenced the court a quo's evaluation of the manner in which Jiba and Mrwebi handled the Mdluli case."

'Surely this is irrelevant'

It said the high court had referred to a letter by Mdluli to former president Jacob Zuma, the minister of safety and security and the commissioner of the police, which stated that the charges brought against him were a conspiracy.

"I was unable to glean the relevance of quoting from the said letter. In my view, the content of the letter was far-fetched and did not establish whether Jiba was a fit and proper person to practice as an advocate."

The SCA also criticised the high court's finding that Jiba and Mrwebi did not only bring the prosecuting authority and legal profession into disrepute, but had also brought the office of the president of the Republic of South Africa into disrepute after they failed to prosecute Mdluli.

"Surely this is irrelevant and cannot be a good reason singularly or cumulatively to remove an advocate from the roll."

The SCA said Jiba had previously said that she was not afforded a proper hearing.

She had argued that the GCB should have held an inquiry before approaching a court of law, it said.  

Jiba could not have been regarded as "not fit and proper person, simply because she was advised otherwise".

"It must be considered that she did not benefit in any manner whatsoever from providing an incomplete rule 53 record, nor did she act dishonestly."

On the issue of Mrwebi, the SCA found that he "genuinely, did not comprehend what the concept 'in consultation' meant, however, the concessions he made under cross-examination by counsel for the GCB, indicated that he was at most confused.

"As regards to Mrwebi, I am of the considered view that the court a quo treated him harshly. Mrwebi, notwithstanding his misconduct, did not personally gain anything from his actions.

"His failure to comprehend the concept of 'in consultation', in my view should perhaps be attributed to his incompetence or naivety rather than his honesty and lack thereof."

The judgment was split among five judges, with three ruling in favour of Jiba and Mrwebi, while two had opposing views.

Meanwhile, in a statement issued on Tuesday, minority rights lobby group AfriForum said it would proceed at "full capacity" to privately prosecute Jiba.

"The NPA now has no reason not to make a decision regarding AfriForum's application for a nolle prosequi certificate," Head of AfriForum's Anti-Corruption Unit Monique Taute said.

"It is now even more vital that Jiba is criminally prosecuted. The NPA's answer to our request for a nolle prosequi certificate was that they will base their decision pending the judgment of today's appeal process.

"The NPA now has no choice other than to announce their decision regarding the reinstitution of Jiba's prosecution. If the NPA decides not to prosecute, AfriForum's Private Prosecution Unit is at the ready to privately prosecute her," Taute said.

Freedom Under Law's Nicole Fritz told News24 that they would also continue with a court process where they are seeking disciplinary process against Jiba and Mrwebi. 

Read more on:    npa  |  nomgcobo jiba  |  lawrence mrwebi

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