The nine lives of Jiba en Mrwebi
27 June 2019
The Constitutional Court (the Court) today handed down judgment in the General Council of the Bar of South Africa v Jiba and Others matter. The Court dismissed the General Council of the Bar’s (GCB) application for leave to appeal the judgment of the Supreme Court of Appeal (SCA) that found that both Jiba and Mrwebi should not be not removed from the Roll of Advocates.
Jiba and Mrwebi were initially struck from the Roll of Advocates in September 2016, after the Gauteng High Court in Pretoria (the High Court) agreed with the GCB that they were neither fit nor proper to be advocates. Section 7(2) of the Admission of Advocates Act states that an advocate may be struck off the Roll of Advocates if the High Court is satisfied that he or she is not a fit and proper person to continue to practise as an advocate. The case was based on the manner in which the pair conducted themselves in the dropping of charges against former Crime Intelligence Head Richard Mdluli in 2011, among others. The High Court was critical of the pair’s conduct in relation to those proceedings. Furthermore, the High Court found that Jiba and Mrwebi had lied in their affidavits and that they had suppressed information with the intention to mislead the High Court.
The matter then went to the SCA in July 2018, where the High Court's ruling was overturned, and it was held that Jiba and Mrwebi should not be struck off the Roll of Advocates. The judgment was split among five judges - three ruled in favour of Jiba and Mrwebi and the others disagreed and made a dissenting judgment. The majority judgment found that the GCB could not establish any misconduct on Jiba’s part and that the evidence presented by the GCB, together with Jiba’s explanation, did not establish the alleged offending conduct on a balance of probabilities. In respect of Mrwebi, the majority accepted that misconduct was established against him but there was no evidence of dishonesty because he did not gain from the misconduct. Despite these findings, the SCA agreed with the High Court that as advocates, Jiba and Mrwebi were not measuring up to the required standard of integrity and honesty.
The GCB then approached the Constitutional Court for leave to appeal the SCA’s ruling (i.e. to have the SCA’s judgment overturned). In order for a matter to be heard in the Constitutional Court, certain requirements must be met. The CGE failed to show and prove that there was a constitutional issue to be heard, that interpretation of the Constitution was needed or that a constitutional right needed to be protected. The Court therefore dismissed the application for leave to appeal on the grounds that it had no jurisdiction over the matter. This means that both Jiba and Mrwebi remain Members of the Bar and are able to seek and obtain work as advocates - except at the National Prosecuting Authority, for now.