Jiba, Mrwebi case ‘alarming’
The Supreme Court of Appeal’s (SCA) shock judgment yesterday, which returned Nomgcobo Jiba and Lawrence Mrwebi to the National Prosecuting Authority (NPA), saw only three of the five judges agreeing it was for the best.
This may provide grounds for appeal, which could only be heard in the Constitutional Court, Wits University’s associate law professor James Grant said yesterday.
“The effect on the man in the street is going to be profound,” Grant said. “This decision may be more important than the dagga decision insofar as it impacts on the justice system, it’s certainly very important. There can be no overstating that.”
The impact would be felt in terms of the functionality and the trustworthiness of the NPA, Grant felt. “Even once they were gone and it was still under NPA head Shaun Abrahams, its integrity was in tatters in terms of public sentiment.
“Now you’ve got their return, I don’t think the integrity of the NPA can absorb this.”
Three judges – acting Deputy Judge President Zwelibanzi Shongwe (with judges Legoabe Seriti and Baratang Mocumie concurring) – dismissed Jiba and Mrwebi’s striking off the roll with no order as to costs.
General Council of the Bar (GCB) chairperson, advocate Vuyani Ngalwana, said yesterday he was still reading the judgment.
“The GCB executive committee, which comprises 10 people, will then have to discuss it and then prepare a statement, hopefully by noon [on Wednesday],” Ngalwana said.
Shongwe found “the evidence presented by the GCB juxtaposed with the explanation proffered by her failed to establish the alleged offending conduct on a preponderance of probabilities”.
“On that ground the appeal must succeed. It becomes unnecessary to consider the discretion of the court on the question whether or not she is a fit and proper person to remain on the roll of advocates.”
Shongwe added: “As regards Mrwebi, I am satisfied that the alleged offending misconduct has been established and I also concur that the court a quo exercised its discretion judicially when it concluded that he is not a fit and proper person to practise as an advocate. However, it misdirected itself regarding the appropriate sanction to be imposed.”
The acting deputy judge president found the above reasons were enough to suspend Mrwebi, but not enough to strike him from the roll, as he had not personally benefited from his misconduct, nor did he prejudice any client.
The dissenting judgment by Judge Christiaan van der Merwe (with Judge Eric Leach concurring) held that the appeals of Jiba and Mrwebi should fail and the cross appeal of the General Council of the Bar should succeed.