The Constitutional Court in session. Picture: GCIS
The Constitutional Court in session. Picture: GCIS

The Constitutional Court must decide whether it will be the final arbiter on whether suspended National Prosecuting Authority (NPA) officials Nomgcobo Jiba and Lawrence Mrwebi are fit and proper to be advocates.

The top court on Thursday heard arguments for leave to appeal against a Supreme Court of Appeal decision to keep the two suspended senior NPA officials as members on the roll of advocates. The General Council of the Bar, which appealed against the Supreme Court of Appeal decision, wants Mrwebi and Jiba struck off the roll.

If struck off the roll, the two will automatically lose their top positions in the NPA, as only advocates are allowed to hold the posts.

The legal battle in the Constitutional Court on Thursday took place a day before the Mokgoro inquiry is expected to give its report to President Cyril Ramaphosa in a separate process established to determine whether the two are fit to hold office in the NPA. That inquiry is chaired by retired Constitutional Court justice Yvonne Mokgoro.

General Council of the Bar lawyers argued that honesty was integral  in the independence of the NPA. They want the top court to hear the matter and rule that the two should be struck from the roll of advocates.

The General Council of the Bar believes they are not fit and proper to be advocates, despite the Supreme Court of Appeal finding that they are.

The court heard the General Council of the Bar's application for leave to appeal against the Supreme Court of Appeal judgment which placed Jiba, the suspended deputy national director of public prosecutions, and Mrwebi, the suspended special director of prosecutions and head of the Specialised Commercial Crimes Unit, back on the roll of advocates in 2018.

On Thursday, the Constitutional Court’s justices focused their questions on the issue of jurisdiction. If the court finds it has no jurisdiction, the application for leave to appeal will be dismissed and the Supreme Court of Appeal judgment will stand.

Jiba and Mrwebi, whose status as advocates is on the line if the Constitutional Court finds in the General Council of the Bar’s favour, argued that the top court had no jurisdiction over the appeal.

The main issue at hand was whether there were any constitutional or legal issues which arose out of the Supreme Court of Appeal judgment on which the appeal was based. The Constitutional Court as a rule does not hear appeals which arise only out of disputes on the interpretation of facts.

The appeal court had heard the initial appeal from Jiba and Mrwebi after the Pretoria High Court judgment, which struck them off the roll for the manner in which they had conducted themselves in the litigation that followed the decision to drop the charges against former crime intelligence boss Richard Mdluli.

The other cases raised by the General Council of the Bar related to the prosecution of former KwaZulu-Natal Hawks head Johan Booysen, as well as the fight for the release of the so-called spy tapes — the main  basis on which graft charges against former president Jacob Zuma were dropped.

The slim majority judgment of the Supreme Court of Appeal found that Jiba’s actions did not warrant misconduct. While Mrwebi’s actions warranted misconduct, the appeal court said it was not serious enough to call for a striking from the roll. The minority judgment ruled that the two should have been struck from the roll. 

Geoff Budlender, SC, in closing arguments for the General Council of the Bar, said the issues surrounding Jiba and Mrwebi centred on honesty in the prosecuting authority. This was a key prerequisite in the rule of law and in prosecutorial independence, making the matter a constitutional issue, he said.

Justice Johan Froneman said the court did not as a rule hear appeals which arose from the factual inquiries relating to honesty and integrity and asked Budlender if the General Council of the Bar wanted the court to make an exception.

Norman Arendse SC, for Jiba, argued that the General Council of the Bar's appeal was merely based on the facts, and that the court therefore had no jurisdiction on the matter.

Judgment was reserved.  

mailovichc@businesslive.co.za