Nomgcobo Jiba. Picture: SOWETAN
Nomgcobo Jiba. Picture: SOWETAN

The stark difference between judges on whether senior National Prosecuting Authority (NPA) officials Nomgcobo Jiba and Lawrence Mrwebi should be struck from the roll form part of the reasons for an application to the Constitutional Court to have the process reviewed.

In July, the Supreme Court of Appeal (SCA) overturned a high court decision that struck Jiba, a deputy national director of public prosecutions, and Mrwebi, a special director of public prosecutions and head of the specialised commercial crimes unit, off the roll of advocates.

Both Jiba and Mrwebi were reinstated in their positions following the SCA ruling.

Jiba was seen as former president Jacob Zuma’s right-hand person in the NPA.

In a last-ditch effort, the General Council of the Bar (GCB) lodged an application for leave to appeal against the SCA judgment, saying it believed that "there was reasonable prospects of success".

The GCB had originally applied to have Jiba, Mrwebi and advocate Sibongile Mzinyathi struck from the roll based on how they had dealt with three politically loaded cases. It was the decision to drop criminal charges against former crime intelligence boss Richard Mdluli that finally got Jiba and Mrwebi struck from the roll.

The GCB also wanted the court to answer the legal question on the standard of conduct of advocates and what form of misconduct would be sufficient to justify the removal of an advocate from the roll.

Minority judgment

The majority judgment in the SCA was written by Judge Jeremiah Shongwe, with judges Willie Seriti and Baratang Constance Mocumie concurring. Judges Eric Leach and Christiaan van der Merwe dissented. Van der Merwe’s minority judgment made it clear that they believed the appeal should have been dismissed and that the two should have remained off the roll of advocates. The GCB agreed with this.

The minority judgment went further, saying the decision to remove the two from the roll was correct because "in all three matters Ms Jiba gave untruthful evidence under oath and thus displayed dishonesty and a lack of integrity".

In the founding affidavit, GCB chairman Craig Watt-Pringle SC said four judges, two from the high court and two from the SCA, had agreed that they should be struck from the roll, while three in the SCA believed it was not necessary.

Watt-Pringle said the SCA was "sharply divided" on the appropriate standard to be applied in matters involving dishonesty by practitioners.