THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 141/17 and 180/17

In the matter between:

NOMGCOBO JIBA

FIRST APPELLANT

LAWRENCE SITHEMBISO MRWEBI
SECOND APPELLANT

and

THE GENERAL COUNCIL OF
THE BAR OF SOUTH AFRICA

FIRST RESPONDENT

SIBONGILE MZINYATHI

SECOND RESPONDENT

and in the matter between:

LAWRENCE SITHEMBISO MRWEBI

APPELLANT

and

THE GENERAL COUNCIL OF
THE BAR OF SOUTH AFRICA

RESPONDENT

Neutral citation: Jiba & another v The General Council of the Bar of South
Africa and Mrwebi v The General Council of the Bar of
South Africa (141/17 and 180/17) [2018] ZASCA 103 (10
July 2018)

Coram:
Shongwe ADP, Leach, Seriti, Van der Merwe and Mocumie JJA

Heard:
22 March 2018

Delivered: 10 July 2018

Summary: Advocate – misconduct – whether fit and proper person to practise
as an advocate – appellants not advocates in private practice – employed by the
National Prosecuting Authority – alleged to be not fit and proper persons to
remain on the roll of advocates while acting as litigants – found not to have
benefitted – appeal upheld.

ORDER

On appeal from: Gauteng Division, Pretoria (Legodi and Hughes JJ sitting as
court of first instance):
1 The appeal is upheld with no order as to costs.
2 The counter-appeal is dismissed with costs including the costs of two counsel.
3 Paragraph 177.1 of the order of the court a quo is confirmed.
4 Paragraph 177.2.1 and 177.2.2 are set aside and replaced with the following:
‘The application for the striking off the roll of Ms Jiba and Mr Mrwebi is
dismissed with no order as to costs, however as regards Mr Mrwebi he is
suspended as an advocate for a period of six months from the date of this order
(15 September 2016).’

JUDGMENT

Shongwe ADP (Seriti and Mocumie JJA concurring)
Introduction
[1] The General Council of the Bar (GCB), a voluntary association with legal
personality in terms of its constitution, brought an application in terms of s
7(1)(d) of the Admission of Advocates Act 74 of 1964 (the Act) to strike from
the roll of advocates, alternatively to suspend officials of the National
Prosecuting Authority (NPA) in April 2015. These officials are Ms Nomgcobo
Jiba (Jiba), who held the position of Deputy National Director of Public
Prosecutions (DNDPP); Mr Lawrence Sithembiso Mrwebi (Mrwebi), who held
the position of Special Director of Public Prosecutions and head of the
Specialised Commercial Crime Unit (SCCU) and Sibongile Mzinyathi
(Mzinyathi) who held the position of Director of Public Prosecutions in North

Gauteng. (For ease of reference and without disrespecting them, I shall refer to
all parties by their surnames.)

[2] This appeal is against the order of the Gauteng Division, Pretoria (Legodi
and Hughes JJ), striking from the roll of advocates, the names of Jiba and
Mrwebi with costs including the costs of two counsel, the one paying the other
to be absolved. The application against Mzinyathi was dismissed with costs to
include the costs of two counsel. Against the order of costs, the GCB filed a
counter-appeal. The appeals are with the leave of the court a quo. The three
applications were dealt with in one hearing and were therefore heard together in
this court as the factual and legal background was similar.

[3] The appointment of members of the NPA is in terms of s 179 of the
Constitution read with s 11 of the National Prosecuting Authority Act 32 of
1998 (the NPA Act). The NPA Act provides for the members of the NPA to be
appropriately qualified and to possess legal qualifications that would entitle him
or her to practise in all courts in the Republic (s 9(1) of the NPA Act). The GCB
has the authority to apply to court for suspension of its members as advocates
from practice and the removal of their names from the roll of advocates in terms
of s 7(1)(d) of the Act.

[4] Only a court has the authority to strike a name from the roll of advocates
or attorneys. In this case the GCB amassed information from various sources
and public records, for instance from judgments handed down from various
courts such as Freedom Under Law v National Director of Public Prosecutions
& others 2014 (1) SA 254 (GNP); National Director of Public Prosecutions &

others v Freedom Under Law 2014 (4) SA 298 (SCA); [2014] ZASCA 58; and
Zuma v Democratic Alliance & others [2014] ZASCA 101; [2014] 4 All SA 35
(SCA). And also sourced information contained in the affidavits in the various
cases and from the office of the NPA. The gist of the information gathered
sought to prove that the appellants (Jiba and Mrwebi) were not fit and proper
persons to remain admitted as advocates.

Legal Framework
[5] I now turn to deal with the relevant legal principles to be considered
before an advocate can be struck from the roll. The application is brought in
terms of s 7(1) of the Act – and it reads as follows:
‘Subject to the provisions of any other law, a court of any division may, upon application,
suspend any person from practice as an advocate or order that the name of any person be
struck off the roll of advocates–
(d) if the court is satisfied that he is not a fit and proper person to continue to practise as an
advocate . . . .’

[6] This court in Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ([2000] 2
All SA 310 (A) placed the following guidelines which were followed with
approval in Malan & another v Law Society of the Northern Provinces [2008]
ZASCA 90; 2009 (1) SA 216 (SCA) para 4:
‘First, the court must decide whether the alleged offending conduct has been established on a
preponderance of probabilities, which is a factual inquiry.
Second, it must consider whether the person concerned “in the discretion of the Court” is not
a fit and proper person to continue to practise. This involves a weighing up of the conduct
complained of against the conduct expected of an attorney and, to this extent, is a value
judgment.

And third, the court must inquire whether in all the circumstances the person in question is to
be removed from the roll of attorneys or whether an order of suspension from practice would
suffice.’
The principles that apply in striking off an attorney from the roll also apply
where an advocate is concerned. It is common cause that these proceedings are
not ordinary civil litigation proceedings but are said to be sui generis in nature.
The GCB as custos morum of the profession acts in the interest of the
profession, the court and the general public. The GCB’s role is to present
evidence of the alleged misconduct to court, and for the court to exercise its
disciplinary powers. On the other hand the practitioner is expected to proffer an
acceptable explanation to gainsay the allegations. The nature of the proceedings
is not subject to the strict rules that govern ordinary civil proceedings. (See
General Council of the Bar of South Africa v Matthys 2002 (5) SA 1 (E) para 4
and Society of Advocates of South Africa (Witswatersrand Division) v Edeling
1998 (2) SA 852 (W) at 859l et seq.)

Facts
[7] The genesis and the long history of this appeal arose after a certain
Lieutenant-General Richard Mdluli (Mdluli), the head of Crime Intelligence
within the South African Police Service (SAPS) had been charged with fraud,
corruption and related charges and also with murder and attempted murder. The
fraud and corruption charges were subsequently withdrawn by Mrwebi and later
Advocate Chauke, the Director of Public Prosecutions (DPP) South Gauteng,
also withdrew the murder and related charges against Mdluli. Unhappy about
the withdrawal of these charges, Freedom Under Law (FUL), a non-profit
organisation recognised to be acting in the public interest in terms of s 38 of the
Constitution, launched review proceedings to have the withdrawals set aside. It
is significant to mention that Jiba was appointed DNDPP with effect from 22
December 2010 when the GCB launched the application for her to be struck

from the roll of advocates. She had been acting as the NDPP after the position
became vacant when Advocate Simelane was removed as NDPP. The context of
her involvement in this office vis-à-vis the grounds on which she is accused of
not being a fit and proper person is important in the proper consideration of the
adjudication of this matter.

[8] Several complaints were raised by FUL against Jiba, Mrwebi and
Mzinyathi during the hearing of the review proceedings. For example that,
through their conduct, they delayed and frustrated the prosecution of the review
proceedings by failing to file a record of decision in terms of rule 53 of the
Uniform Rules of Court. (I shall revert to this complaint later in the judgment.)
For now, it suffices to say that it is one of the reasons put forward by the GCB
to show that the appellants were not fit and proper persons. The other complaint
by FUL was that the delay to file a record of decision prolonged the review
proceedings which resulted in the late filing of the appellants’ answering
affidavits in the review proceedings. The Deputy Judge President of the
Gauteng Division, Pretoria (DJP) had to intervene, by directing the appellants to
file their answering affidavit by 24 June 2013, which was eventually filed nine
days later. This delay resulted in Murphy J, who presided in the review
proceedings, to remark that the reasons advanced for the various delays, and late
filing were sparse and mostly unconvincing. This was also raised by the GCB as
an indicator of them being unfit persons to remain on the roll of advocates.
However Murphy J condoned the non-compliance with the rules and directives
of the DJP. I now turn to deal with the complaints against Jiba and Mrwebi
which according to the GCB justify declaring them to be not fit and proper
persons to remain on the roll of advocates.

Complaints against Jiba
[9] Initially Jiba raised certain points in limine, that she had not been
afforded a proper hearing and the issue of separation of powers. She argued that
the GCB should have held an enquiry before approaching a court of law, as is
usually done where a practising advocate is charged with misconduct. These
points were not pursued on appeal, therefore there is no need to decide them. I
now turn to deal with the specific complaints levelled against Jiba.

[10] The first complaint dealt with by the court a quo was in connection with
Booysen’s case. In that case Jiba, in her capacity as acting NDPP issued two
authorisation letters charging Major General Johan Wessel Booysen with the
contravention of s 2(1)(e) and (f) of the Prevention of Organised Crime Act 121
of 1998 (POCA). In a nutshell Booysen alleged that Jiba was ‘mendacious’
when she asserted that she considered statements together with other
information in the docket before she took the decision to charge him. This
allegation was further exacerbated by the negative remarks of Gorven J who
presided in the Booysen matter when he drew an inference that none of the
information upon which Jiba relied linked Booysen to the offence in question.
The court a quo found that ‘[i]t suffices for now to conclude on [the] Booysen
matter by stating that no case has been made for removal or suspension from the
roll of advocates’. I do not find it necessary to deal with the detail of the
complaint in view of the finding of the court a quo. I share the sentiment
expressed. Before us counsel for the GCB dealt with some of the complaints
but, in my considered view did not take the matter any further. The court a quo
could not find ‘any mala fides and or ulterior motive in the authorisation by Jiba
as contemplated in POCA’.

[11] The next complaint against Jiba was in connection with a challenge on
review by the Democratic Alliance (DA), a political party, against the decision
of the NPA in which the then acting NDPP, Advocate Mokotedi Mpshe,
withdrew corruption charges against the former President Jacob  Zuma. The
withdrawal came after Adv Mpshe had listened to a recorded conversation on
tape between the former NDPP (Mr Bulelani Ngcuka) and the then DPP for
Durban (Mr McCarthy). The complaint was in connection with Jiba’s handling
of this matter in her capacity as acting NDPP. This case popularly became
known as the ‘spy tapes case’. The specific complaint was that Jiba failed to
comply with the requirements of rule 53 of the Uniform Rules which require the
disclosure of the record of proceedings under review. As a result the DA
approached the high court, Pretoria seeking an order to compel the NPA to
comply with the rule. The application was dismissed, subsequently the DA
appealed to this court. The appeal was upheld and certain orders were made
which the NPA failed to comply with. As a result certain negative remarks were
made by this court. Such remarks and failure to comply with the court order
were advanced as reasons why Jiba was not fit and proper to remain on the roll
of advocates. Because of the findings of the court a quo, which I agree with, it
will not be necessary to deal with specifics, save to add that the court a quo
concluded that the GCB failed to show any mala fides on Jiba’s part or that she
was motivated by an ulterior motive. (See the judgment of the court a quo
reported as General Council of the Bar of South Africa v Jiba 2017 (2) SA 122
(GP).)

[12] The main reason, in the court a quo’s view, why Jiba and Mrwebi were
found to be not fit and proper persons to remain on the roll of advocates was
their handling of the so called Mdluli case. It is significant to note that the court
a quo started by describing who Mdluli was and detailed his personality,

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. The relevance of which is not clearly explained. The court a
quo, in its judgment, referred to a letter by Mdluli to former President Zuma, the
Minister of Safety and Security and the Commissioner of 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
practise as an advocate.

[13] The specific complaints were: (a) that she failed to file a full complete
rule 53 record even after a court order to that effect; (b) that she failed to file an
answering affidavit after the DJP had directed her to do so and that she did not
file her heads of argument timeously; (c) that her reason for the delays were
sparse and unconvincing; (d) that her conduct as a person of high rank in the
public service was unbecoming; (e) that she failed to disclose that she had
received a 24 page memorandum from Advocate Breytenbach and that she
deliberately attempted to mislead the court with reference to the memorandum;
(f) that this court had criticised her conduct in the handling of the Mdluli matter;
and (g) that she failed to make a full and frank disclosure to refute, explain or
ameliorate  the serious allegations against her.

[14] It is significant to consider these complaints together with Jiba’s answers
and explanation in the context of her position as acting NDPP and the fact that
she is cited herein as a litigant. Jiba was not acting as counsel representing a
client. She acted as head of the NPA, therefore the State Attorney and counsel

had to be appointed to represent her. In her answering affidavit she explained
the policy applicable where an official had been cited in his or her
representative capacity. She further explained that the Legal Affairs Division
(LAD) tasked with the handling of all matters pertaining to civil litigation dealt
with this matter. The LAD was headed by Advocate Nomvula Mokhatla the
Deputy National Director of Public Prosecutions. In her team, were deputy
directors, senior State advocates and senior State prosecutors. This team would
prepare a memorandum on steps to be taken, arrange consultations with her and
advise on how the LAD would handle the matter further. Counsel would be
briefed by the State Attorney. She further explained that the LAD is similar to
‘an in-house legal department . . . ’.

[15] Jiba’s explanation to counter the complaint that she failed to file a full
and complete rule 53 record was that Advocate Motimele SC and Advocate
Notshe SC had been briefed to advise on the preparation of the rule 53 record. It
was prepared by Advocate Chita on behalf of the NPA on the advice of the
Motimele SC team. This was done after Advocate Chita had consulted with
Mrwebi and Advocate Chauke whose impugned decisions were to be reviewed.
Her conduct must be viewed and equated to an attorney and client relationship
to her advisors. She is a trained lawyer, however her opinion would be
secondary to that of counsel and the LAD. She cannot, in my considered view
be said to be not a 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. In para 24 of Murphy J’s judgment he condoned the non-
compliance with the rules and directives of the DJP. To me this is an indication
that no prejudice was caused to any party. We preside in matters daily where
attorneys and counsel take incorrect decisions or instructions, and also file court

processes out of time, however, they apply for condonation; and in most cases
such would be granted if no prejudice would result. The legal practitioners in
these instances are not necessarily unfit persons to practise as advocates or
attorneys in so doing.

[16] The complaint that she failed to disclose the memorandum from
Advocate Breytenbach and thereby deliberately attempted to mislead the court,
was explained as follows. It must be clear from the onset that this was a
confidential internal memorandum prepared by Advocate Breytenbach to Jiba
expressing a different view to the impugned decision by Mrwebi. The court a
quo concluded in para 136.3 that ‘[f]ailure by Jiba not to disclose Breytenbach’s
memo in the proceedings before Murphy J and failure to consider the request by
Breytenbach for internal review of Mrwebi’s decision was, in my view,
deliberate and was intended to mislead Murphy J’. It was not Murphy J who
said that Jiba attempted to mislead the court. It was the court a quo’s conclusion
on the reasons set out above. The truth of the matter is that when Murphy J
heard the review proceedings, the Breytenbach memo had already been in the
public domain at the labour court when Breytenbach was fighting against her
suspension. It cannot, therefore be fair, to accuse Jiba of failing to disclose the
Breytenbach memo before Murphy J. Jiba cannot, fairly be accused or alleged
not to be a fit and proper person for failing to consider the request by
Breytenbach for the internal review of Mrwebi’s decision. Surely Jiba should be
entitled to her own opinion based on facts at her disposal. She should not be
punished for differing with Breytenbach. Murphy J went further to say that ‘The
NDPP in her answering affidavit, though not dealing directly with the
[Breytenbach] memo, maintained that the decision to withdraw charges had not
come to her office for consideration “in terms of the regulatory framework”’.

[17] The next complaint arose from a meeting between Jiba and Advocate
Motau SC, who had been briefed after Motimele SC’s team withdrew on 26
July 2013, in an unscheduled consultation. She is reported to have said that she
had not received the answering affidavit settled by Advocate Motau SC.
Whereas Advocate Sebelemetsa of the State Attorney’s office had written to
Advocate Motau SC’s team advising them that the draft answering affidavit had
been amended by separating Jiba’s from that of Mrwebi. Advocate Sebelemetsa
also wrote a memo on 3 September 2013 advising that they ‘never had any
consultation with the team [i e Advocate Motau SC] in preparation of the said
affidavit’. The court a quo concluded that Jiba ‘was steadfast to defy logic and
advice [from Advocate Motau SC] for as long as her wishes were not
accommodated. That is the kind of conduct making Jiba to cease to be a fit and
proper person and to remain on the roll of advocates’. Therefore the court a quo
was of the view that Jiba lied when she told Advocate Motau SC that she had
not received the affidavit. In my view it is not the only reasonable inference to
be drawn. As explained above, the State Attorney would liaise with the LAD
and deal with issues and correspondence without necessarily informing Jiba. All
that needed to happen was to have Mrwebi sign the affidavit and that Jiba sign a
supporting affidavit. The explanation could be that Jiba’s team was of the view
that the impugned decision in the Mdluli matter was that of Mrwebi. The signed
affidavit was received by Advocate Motau SC. The difference of opinion
between Advocate Sebelemetsa on the second and third of July 2013 long after
the unscheduled consultation with Motau SC and Jiba’s team and the inference
drawn by the court a quo, in my considered view, would not justify labelling
Jiba a dishonest person and consequently not fit and proper to remain on the roll
of advocates. As a result of this misunderstanding Advocate Motau SC and his
team withdrew from the matter.

[18] Advocate Halgryn SC was briefed after the withdrawal of Advocate
Motau SC. After several consultations Advocate Halgryn was in disagreement
with the manner in which the case had been conducted. He was of the view that
from the papers there was no defence. Jiba responded to Halgryn SC’s team by
saying that ‘it assumed that there was a prima facie case against Mdluli of fraud
and corruption which had to be enrolled and prosecuted . . . it assumed that the
decision of Adv Chauke not to proceed with the other charges while he had
referred the matter to a formal inquest was incorrect . . . it assumed that I [Jiba]
had stood back and did nothing since the withdrawal of the charges’. She further
explained that the fraud and corruption charges against Mdluli were withdrawn
for purposes of further investigation and that the intention was to reinstate these
charges if further incriminating evidence came to hand. The difference of
opinion should not and cannot fairly be considered sufficient to conclude that
Jiba is not a fit and proper person to remain on the roll of advocates. Perhaps
one may infer some form of incompetence with regard to her duties, which may
be a ground to remove her from being the DNDPP but not sufficient enough to
be removed from the roll of advocates. Jiba also referred, in her answering
affidavit, to the view of two senior State prosecutors who also handled this
matter, namely Advocate Andre Becker and Advocate Rita Viljoen who
expressed the view that there was insufficient evidence to prosecute Mdluli on
the fraud and corruption charges. It follows therefore that the GCB failed to
establish any misconduct against Jiba. Therefore the first jurisdictional
requirement was lacking. In the circumstances of this case there is no need to
deal with a value judgment to determine whether Jiba is a fit and proper person
to remain on the roll of advocates. Therefore even the sanction imposed of
striking her name from the roll does not arise. The court a quo materially

misdirected itself when it came to the conclusion that the decision is one no
reasonable court could make.

Complaint against Mrwebi
[19] The main complaint against Mrwebi was that he sought to mislead the
court on the extent of the consultation or ‘in consultation’ between himself and
Mzinyathi. Put differently that he took a decision to withdraw the fraud and
corruption charges against Mdluli before he consulted with Mzinyathi in terms
of s 24(3) of the NPA Act. It is alleged further that Mrwebi persisted with this
conduct even after having been advised by Motau SC and Halgryn SC that he
was wrong. The other complaints were that he sought to mislead the court by
not providing a proper record of all the documents and facts relevant for the
proper determination of the FUL review proceedings. Some of the answers and
explanations given by Jiba relating to the rule 53 record are relevant and
applicable to the case of Mrwebi and may be properly considered herein.

[20] What weighs heavily against Mrwebi are the answers and explanations
proffered by him against these allegations. Mrwebi received representations
from Mdluli regarding the fraud and corruption charges. He apparently decided
to withdraw and discontinue the prosecution of Mdluli before discussing with
Mzinyathi or ‘in consultation’ with Mzinyathi as required by s 24(3) of the NPA
Act. It is apparent that Mrwebi furnished contradictory explanations of when
and why he decided to withdraw the charges against Mdluli. It is clear from
Mzinyathi’s confirmatory affidavit that he contradicted Mrwebi’s assertions that
there was any form of consultation on 5 December 2011 when the two met and
discussed the Mdluli matter. At some point while discussing this matter Mrwebi
created the impression that the decision to discontinue the prosecution fell

squarely within the mandate of the Inspector General of Intelligence (IGI) in
terms of the Intelligence Services Oversight Act 40 of 1994. Murphy J found
that ‘[i]t is common cause that Mrwebi did not consult the SAPS or the IGI
prior to withdrawing the charges, and that Mzinyathi and Breytenbach informed
Mrwebi at the meeting with him on 9 December 2011 that the IGI was not
authorised to conduct criminal investigations’. The IGI, indeed, confirmed that
‘[t]he mandate of the IGI does not extend to criminal investigations which are
court driven and neither can the IGI assist the Police in conducting criminal
investigations’.

[21] It is highly possible that Mrwebi, 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. I
would not classify his explanations as dishonest. However I am prepared to find
that the GCB succeeded in establishing the alleged offending conduct on a
preponderance of probabilities. Because there was no personal gain from
Mrwebi’s conduct, I do not think that the sanction handed down is justified. The
purpose of these proceedings is to uphold the rules regulating the profession and
not to punish the wrongdoer. (See Society of Advocates of South Africa
(Witwatersrand Division) v Cigler 1976 (4) SA 350 (T) at 357 G-H.)

Complaints against Mzinyathi

[22] Murphy J made some negative remarks against Mzinyathi suggesting that
the confirmatory affidavit of Mzinyathi differed from his evidence tendered at
the disciplinary hearing of Breytenbach. The GCB interpreted this supposed
contradiction as misconduct, hence it was of the view that Mzinyathi was not a
fit and proper person. The court a quo placed the misunderstanding by Murphy J

into perspective and contextualised it. It came to the conclusion that Mzinyathi,
should be commended for standing firm against Mrwebi’s withdrawal of the
charges against Mdluli. His evidence during Breytenbach’s disciplinary
proceedings was consistent with his stand point surrounding what transpired on
the fifth, eighth and ninth of December 2011. The court a quo, correctly so in
my view, dismissed the complaint against Mzinyathi with costs, up to the stage
when the GCB indicated that it will not persist against Mzinyathi.

[23] The GCB was granted leave to appeal the costs order against it in favour
of Mzinyathi. The GCB contended that it acted reasonably and in the interest of
its members and the public at large when it brought the application against
Mzinyathi. It further contended that Mzinyathi together with Jiba and Mrwebi
had been criticised by not only the high court (Murphy J) but also by this court.
Finally it averred that the normal rules of costs in adversarial proceedings
should find no application.

[24] On the other hand, counsel for Mzinyathi contended that the general
principle with regard to costs is that the court exercises its discretion and that
the successful party should, as a general rule, have his or her costs. (See
Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others 1996
(2) SA 621 (CC) para 3.) He argued that the fact that the GCB was the custos
morum should not insulate it from paying costs and that no special treatment
should be given to the GCB.

[25] I am unable to find any reason that demonstrates that the court a quo did
not exercise its discretion honestly and judiciously. Therefore this court is not
empowered to interfere with the findings of the court a quo. The only
recognisable basis is possibly that the GCB acted as a custos morum. However,
s 9(1) of the Constitution provides that everyone is equal before the law and has

the right to equal protection and benefit of the law. (See Biowatch Trust v
Registrar Genetic Resources & others [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC).) I am unable to provide a cogent reason as to why
Mzinyathi should be out of pocket when the GCB dragged him to court without
sound and reasonable grounds for doing so. The GCB should at least, have
withdrawn the application to strike Mzinyathi’s name from the roll of
advocates, immediately after the filing of his answering affidavit in this matter.
The court a quo was able to identify the misunderstanding Murphy J was
labouring under and the explanation given by Mzinyathi. The GCB recklessly,
if not irresponsibly, continued to implicate Mzinyathi in a matter where he had
no involvement without verifying the allegations. The only matter wherein
Mzinyathi filed a confirmatory affidavit was the FUL matter; he was not
involved in the so-called ‘spy tapes’ investigation and the Booysen case. The
GCB did not even explain its insistence in its replying affidavit. Counsel for
Mzinyathi elaborated at length on the various instances where the GCB
unreasonably continued to implicate Mzinyathi in its heads of argument. Due to
the view I take on the issue of costs, it is not necessary to exhaust the list. The
counter-appeal stands to be dismissed with costs.

Appropriate sanction
[26] A court of appeal is entitled to interfere with the exercise by the court a
quo of its discretion if it is satisfied that it did not bring an unbiased judgment to
bear on the issues before it, or exercised its discretion upon a wrong principle
and or as a result of a material misdirection. (See Kekana v Society of Advocates
of South Africa 1998 (4) SA 649 (SCA) at 654E-H and 655G and Vassen v Law
Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at 537; also reported
at [1998] 3 All SA 358 (A).) Stated differently, but to the same effect, in Fine v
Society of Advocates of South Africa (Witwatersrand Division) 1983 (4) SA 488
(A) at 494H – 495A, the court remarked that:

‘[T]he Appeal Court will only interfere with the exercise of this discretion on the grounds of
material misdirection or irregularity, or because the decision is one no reasonable Court could
make.’

[27] As regards 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. I recognise
the principle that the main consideration is the protection of the public and not
to punish. In my view the court a quo over-emphasised the nature and
personality of Mdluli, his past misdemeanours or alleged criminal activities and
found it abhorrent that Mrwebi had withdrawn the fraud and corruption charges
against him. Although it later transpired that the charges were not finally
withdrawn, it was a provisional withdrawal. The approach of the court a quo did
not only close its reasoning but ultimately led it to commit material
misdirections by finding that Mrwebi had committed misconduct arising from
allegations irrelevant to his case. The withdrawal of charges against Mdluli
became the centrepiece of the inquiry, whereas the handling and conduct of the
administrative procedures and negative remarks by the judges a quo were
indeed the cause for the complaint. The court a quo, in my view, did not bring
its unbiased judgment to bear.

[28] The GCB alleged that Mrwebi sought to mislead the court by not placing
before it a proper record of all the documents. That Mrwebi sought to mislead
the court as to the date of the consultation with Mzinyathi, whether it was the
fourth or fifth of December 2011. All these complaints collectively or

individually cannot justify the striking off the roll of advocates. These are
common mistakes which counsel make in their daily work and are mostly
excusable. Moreover Mrwebi was not acting for a client but was a litigant
advised by the LAD and counsel. Nowhere in the judgment of the court a quo
was it shown that the court considered a suspension instead of the ultimate
penalty of striking an advocate off the roll and reasons why a suspension was
not an appropriate sanction. I am of the view that considering all the facts and
circumstances of this case a suspension of Mrwebi as an advocate would be the
appropriate sanction. I am alive to the fact that a court of appeal’s interference
with the trial court’s discretion is permissible on restricted grounds. The basis of
my interference is grounded on my findings that the court a quo did not bring its
unbiased judgment to bear on the question before it, and materially misdirected
itself. (See Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at
781I-782A.)

[29] In conclusion, as regards Jiba, 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. As regard Mrwebi, I am satisfied that the alleged
offending misconduct has been established and 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, misdirected itself regarding
the appropriate sanction to be imposed. Based on the reason given above, this is
a case where the court a quo should have suspended Mrwebi, more especially,
that he did not personally benefit from his misconduct nor did he prejudice any
client. All that the court a quo was dissatisfied with was that ‘[b]y their conduct,

they did not only bring the prosecuting authority and the legal profession into
disrepute, but have also brought the good office of the President of the Republic
of South Africa into disrepute by failing to prosecute Mdluli who
inappropriately suggested that he was capable of assisting the President of the
country to win the party presidential election in Mangaung during 2011 should
the charges be dropped against him’. Surely this is irrelevant and cannot be a
good reason singularly or cumulatively to remove an advocate from the roll.

[30] We have had cases in this court against advocates who had admitted to
unlawfully enriching themselves of millions of rands, who in the result have
been either suspended or ordered to repay the spoils (see General Council of the
Bar of South Africa v Geach & others; Pillay & others v Pretoria Society of
Advocates & another; Bezuidenhout v Pretoria Society of Advocates [2012]
ZASCA 175; 2013 (2) SA 52 (SCA)). In the case of Mzinyathi on costs, no
cogent and justifiable grounds have been placed before this court to interfere
with the discretion of the court a quo, save to underscore the tradition of the
GCB being insulated against a costs order regardless. The appeal in this regard
must also fail.

[31] In the result I make the following order:
1 The appeal is upheld with no order as to costs.
2 The counter-appeal is dismissed with costs including the costs of two counsel.
3 Paragraph 177.1 of the order of the court a quo is confirmed.
4 Paragraph 177.2.1 and 177.2.2 are set aside and replaced with the following:
‘The application for the striking off the roll of Ms Jiba and Mr Mrwebi is
dismissed with no order as to costs; however as regards Mr Mrwebi he is

suspended as an advocate for a period of six months from the date of this order
(15 September 2016).’

_______________________

J B Z Shongwe
Acting
Deputy
President
Supreme Court of Appeal

Van der Merwe JA (Leach JA concurring)

[32] I have had the benefit of reading the judgment of Shongwe ADP, and find
myself respectfully unable to agree with his conclusions in respect of the appeal
and cross appeal. In my judgment the appeals of Ms Nomgcobo Jiba (Ms Jiba)
and Mr Lawrence Sithembiso Mrwebi (Mr Mrwebi) should fail and the cross
appeal of the General Council of the Bar (the GCB) should succeed.

[33] An advocate is required to be of ‘complete honesty, reliability and
integrity’. See General Council of the Bar of South Africa v Geach and others
[2012] ZASCA 175; 2013 (2) SA 52 (SCA) paras 126-127. It goes without
saying that these qualities are particularly required of an advocate who holds
high public office in the administration of justice.

[34] Whether a person should be struck from the roll of advocates for failure
to comply with these standards, is determined by a three-stage process. The first
entails a factual finding in respect of the alleged offending conduct. If that
conduct is established, the second stage comprises a finding as to whether the
person is a fit and proper person to continue to practise. If not, the third stage
involves the exercise of a discretion in respect of whether a removal from the

roll of advocates or suspension from practise is appropriate. This court, on
appeal, has limited grounds to interfere with such discretion. It can only do so if
the court a quo acted capriciously, or on a wrong principle, or if it failed to
bring an unbiased judgment to bear on the issues or did not have substantial
reasons – see Kekana v Society of Advocates of South Africa 1998 (4) SA 649
(SCA) at 654D-G.

[35] In light of these considerations I deal with the appeals of Ms Jiba and Mr
Mrwebi in turn.

Ms Jiba
[36] Ms Jiba was a Deputy National Director of Public Prosecutions. During
the period from 28 December 2011 to 30 August 2013 she acted as the National
Director of Public Prosecutions and thus headed the National Prosecuting
Authority (NPA). The contention that Ms Jiba is not a fit and proper person to
continue to practise as an advocate was based on her alleged conduct in her
capacity as Acting National Director of Public Prosecutions (ANDPP) in
relation to three matters.

[37] In the first matter, Freedom Under Law (FUL), a public interest
organisation, inter alia, sought the review and setting aside of the decision of
Mr Mrwebi, who was at the time a Special Director of Public Prosecutions, to
withdraw charges of fraud and corruption against Lieutenant-General Richard
Mdluli. At the time Mr Mdluli was the head of the Crime Intelligence Unit of
the South African Police Service (SAPS). FUL succeeded in the Gauteng
Division, Pretoria where Murphy J reviewed and set aside the decision to
withdraw these charges against Mr Mdluli. His judgment is reported as
Freedom Under Law v National Director of Public Prosecutions and others
2014 (1) SA 254 (GNP) (the FUL matter). An appeal to this court against that

part of the order of Murphy J was unsuccessful. In National Director of Public
Prosecutions and others v Freedom Under Law [2014] ZASCA 58; 2014 (4) SA
298 (SCA) Brand JA, speaking for a unanimous court, held that Mr Mrwebi had
failed to comply with the provisions of s 24(3) of the National Prosecuting
Authority Act 32 of 1998 (the NPA Act), which required him to take the
decision in consultation with, that is with the concurrence of, the Director of
Public Prosecutions for the Gauteng Division, Pretoria (Mr Mzinyathi).

[38] In the second matter, Major-General Johan Booysen, in essence, sought
the review and setting aside of the decision of Ms Jiba to authorise the
institution of a prosecution against him. The matter served before Gorven J in
the KwaZulu-Natal Local Division, Durban who granted the relief claimed.
Gorven J found that the decision was irrational. His judgment is reported as
Booysen v Acting National Director of Public Prosecutions and others [2014] 2
All SA 391 (KZD) (the Booysen matter).

[39] The relevant aspects of the third matter appear from the judgment of this
court in Zuma v Democratic Alliance and others [2014] ZASCA 101; [2014] 4
All SA 35 (SCA) (the Zuma matter). This judgment formed part of protracted
litigation between Mr Zuma and the Democratic Alliance and dealt with the
precise ambit of a previous order that the ANDPP produce and lodge the record
relating to the decision to discontinue the prosecution of Mr Zuma.

[40] The court a quo based its finding that Ms Jiba was not a fit and proper
person to practise as an advocate, only on her conduct in the FUL matter. In the
process it rejected the contentions of the GCB that the conduct of Ms Jiba in the
Booysen and Zuma matters also justified her being struck from the roll of
advocates. In this court, counsel for Ms Jiba argued that in the absence of a

cross appeal it was not open to the GCB, on appeal, to rely on the conduct of
Ms Jiba in the Booysen and Zuma matters.

[41] This argument is without merit. It is trite that on appeal a respondent may
seek to justify the order appealed against on any ground that the record of
appeal allows. A cross appeal is only required when a respondent seeks a
variation of the order of the court a quo, as is the case here in respect of the
costs order against the GCB. The reason for this is that an appeal lies only
against an order, not the reasons for the order. It matters not that the reasons for
the order may to some extent have been incorporated in the order itself. The
court a quo made the order in respect of Ms Jiba that the GCB had proposed. A
cross appeal in respect thereof would be nonsensical. Thus, the GCB was
entitled to seek to justify this order with reference to the Booysen and Zuma
matters.

[42] The essential issue in the Zuma matter was whether the record of decision
that had been submitted by Ms Jiba should have included certain tapes or
transcripts, alleged by Mr Zuma to be confidential, and internal memoranda of
the office of the NDPP relating to the tapes and transcripts. Navsa ADP said
that in her answering affidavit Ms Jiba failed to adopt a position in respect of
the former and resorted to ‘a metaphorical shrugging of the shoulders’. He said
that this displayed a baffling lack of interest in being of assistance to the court.
In respect of the internal memoranda, Navsa ADP stated that ‘Ms Jiba provided
an “opposing’’ affidavit in generalised, hearsay and almost meaningless terms’.
Navsa ADP added that the generalisation resorted to by Ms Jiba was, ‘to say the
least, disingenuous’. Thus, this court held in the Zuma matter that Ms Jiba had
acted in a singularly unhelpful manner and had been less than truthful.

[43] In her answering affidavit in the Booysen matter, Ms Jiba stated that she
had based the decision to authorise the prosecution of Mr Booysen on, inter
alia, four documents that were annexed to her answering affidavit, as annexures
NJ2, NJ3, NJ4 and NJ5. She said that Mr Booysen ‘is directly implicated under
oath in the statements placed before me in Annexures “NJ2” to “NJ5”’.

[44] In this regard Gorven J held as follows:
‘[31] The submissions of Mr Booysen in his replying affidavit can be summarised as
follows. Two of the annexures are sworn statements made under the name of Colonel
Aiyer. These are annexures NJ2 and NJ4 respectively. Mr Booysen describes these as
statements which concern “office politics” and submits that they in no way implicate
him in any of the offences with which he has been charged. The second of these, in
addition to not implicating him in any of the offences in question, was deposed to on
31 August 2012, some two weeks after the first impugned decision was taken. The
document referred to as a statement by Mr Danikas, annexure NJ3, is not a sworn
statement. It is not even signed by anyone. It is not dated. Even if it can be attributed
to the named person and even if it was a sworn statement as claimed by the NDPP, the
contents do not cover the period dealt with in the indictment except for one event
which does not relate to Mr Booysen. As regards annexure NJ5, this does not
implicate Mr Booysen in any of the offences in question.

[32] In argument, the respondents did not in any way challenge the above factual
submissions concerning the nature and content of the annexures in question. The
factual submissions appear to me to be accurate.’

[45] Counsel for Ms Jiba pointed out that annexure NJ3 was patently not an
affidavit, it had not even been signed, and argued that it is improbable that
Ms Jiba intended to express a deliberate falsehood or attempted to mislead the
court in respect of this annexure. That may be so, but the force of the argument
is reduced by the fact that Ms Jiba did not explain in her answering affidavit, in
the present matter, that she had mistakenly described annexure NJ3 as a

statement under oath. In any event, this could not explain the objectively false
statements by Ms Jiba under oath that she had regard to all these annexures
when she made the decision to authorise the prosecution of Mr Booysen and
that Mr Booysen had been directly implicated in the alleged crimes in all of
these statements. The court a quo should, in my view, have taken cognisance
thereof that unexplained false statements were made by an advocate acting as
the NDPP in respect of the essence of the Booysen matter, namely the reasons
for the decision to authorise the prosecution.

[46] In the FUL matter a dismally incomplete record of the decision had been
filed out of time. I am in agreement with counsel for Ms Jiba that in terms of
rule 53(1) the primary obligation to submit the record of decision rested on Mr
Mrwebi. He had taken the decision to withdraw the fraud and corruption
charges against Mr Mdluli. But that did not absolve Ms Jiba from all
responsibility. Indeed, in her answering affidavit in the present application she
did not rely on the absence of an obligation on her to ensure the filing of a
proper record of the decision. Instead, she attempted unconvincingly to justify
the filing of an incomplete record on the basis of uncertainty at the time as to
what should be included in such a record of decision. As the head of the NPA,
who had been cited in that capacity as a party in the FUL matter, Ms Jiba bore
the overall responsibility for the submission of a proper record of the decision.
It suffices to say that this conduct displayed at least a lack of appreciation of the
duty of an advocate to assist the court to come to a speedy and just conclusion.

[47] This is also illustrated by the following. On 8 October 2012, FUL
delivered a supplementary founding affidavit in terms of rule 53(4). On 14
March 2013 it filed a further supplementary affidavit. This was necessitated by
the paucity of the records filed and by further documents that had become
publicly available. The respondents in the FUL matter, including Ms Jiba and

Mr Mrwebi, had to file answering affidavits by no later than 2 May 2013. They
did not do so. On 5 June 2013, Ledwaba DJP issued a directive obliging the
respondents to deliver answering affidavits by no later than 24 June 2013. One
would have thought that the timeous filing of the answering affidavits of Ms
Jiba and Mr Mrwebi would in the circumstances have become a matter of
critical concern to them. On her own evidence, however, Ms Jiba made no
attempt to ensure compliance with the directive. New counsel was briefed to
draft the answering affidavits of Ms Jiba and Mr Mrwebi only on 18 June 2013.
Nevertheless, by 21 June 2013 counsel had managed to prepare draft answering
affidavits and made them available for perusal and comments to be given by
midmorning on Sunday, 23 June 2013. Ms Jiba said that she was unaware
hereof. On 26 June 2013, two days after the deadline for the filing of the
answering affidavits, Ms Jiba had an unscheduled meeting with counsel in
chambers. Counsel personally informed her that the draft answering affidavits
had been made available. This notwithstanding, the answering affidavits were
only filed on 4 July 2013.

[48] Mr Mrwebi took the decision to withdraw the fraud and corruption
charges against Mr Mdluli on 4 or 5 December 2011. These charges related only
to certain motor vehicle transactions. During April 2012, two members of the
NPA, advocates G Breytenbach and J M Ferreira, submitted a memorandum to
Ms Jiba. This memorandum was referred to by the parties as the Breytenbach
memorandum and for convenience I continue to do so. The Breytenbach
memorandum implored Ms Jiba to review the decision of Mr Mrwebi to
withdraw the fraud and corruption charges in respect of the motor vehicle
transactions. It also mentioned that new evidence of possible further similar
offences by Mr Mdluli had since become available.

[49] Ms Jiba did not mention the Breytenbach memorandum in her answering
affidavit in the FUL matter. In the founding affidavit in the present matter, the
GCB suggested that this failure to disclose the Breytenbach memorandum
constituted an attempt to mislead the court and that suggestion found favour
with the court a quo. However, FUL had obtained the Breytenbach
memorandum and it formed part of its papers in the FUL matter. This is not
clear form the record, but I accept that it was probably submitted with one of
FUL’s supplementary founding affidavits. Although Ms Jiba did not appear to
be aware that the Breytenbach memorandum formed part of the papers, I accept
that it is improbable that she intended to conceal the Breytenbach memorandum.

[50] However, this is not the end of the enquiry for present purposes. Ms Jiba
stated in her answering affidavit, in the FUL matter, that the decision of Mr
Mrwebi ‘had not been brought to my office for consideration in terms of the
regulatory framework’ and that she had not received a request to review the
decision by a person whom she considered to be relevant. She went so far as to
say that to ‘descend into the arena without any representations being made to
my office’ would prejudice Mr Mdluli or any other interested party.

[51] A different picture emerged from Ms Jiba’s answering affidavit in the
present matter. First, she said that immediately after she learnt that the charges
against Mr Mdluli had been withdrawn, she called for a briefing by Mr Mrwebi
and Mr Chauke (who had withdrawn murder charges against Mr Mdluli) and
was satisfied with the reasons that were advanced for the withdrawal of the
charges. Thus, Ms Jiba in fact did review or reconsider the withdrawal of the
charges.

[52] Second, Ms Jiba elaborated as follows in respect of the Breytenbach
memorandum:

‘135. I deny that the memorandum received from Adv Breytenbach, was from a person or
party that I considered relevant or was obliged to consider relevant. It therefore did
not constitute representations from a person contemplated by the provisions of section
22(2)(c) of the NPA Act, or at all. It was a document from a prosecutor who failed to
execute tasks assigned to her by her superior. Pursuant to the suspension of
Adv Breytenbach another team of prosecutors was appointed to take the case forward,
namely Adv Becker and Adv Viljoen. There were memoranda submitted by these
prosecutors in terms of which the opposite view was expressed.’

[53] This view about the Breytenbach memorandum could not have been
honestly held. Ms Breytenbach was the regional head of the Specialised
Commercial Crime Unit in Pretoria. This memorandum was submitted by ‘the
lead prosecutors in the matter’. In their 24 page memorandum they made a
persuasive case that Mr Mdluli should be prosecuted on the fraud and
corruption charges relating to the motor vehicle transactions. The Breytenbach
memorandum was certainly worthy of consideration. The statement that it
emanated from a person that was not and should not have been considered
relevant, is simply spurious.

[54] Third, after the answering affidavit of Ms Jiba in the present matter had
been filed, the GCB requested copies of the memoranda by advocates Becker
and Viljoen, in terms of the provisions of rule 35(12). Only one memorandum,
dated 25 June 2013, was produced. It did not at all convey that the prosecution
of Mr Mdluli should not proceed. It only conveyed that the investigation of the
fraud and corruption charges in respect of the motor vehicle transactions and
four other matters of similar nature, had not yet been concluded. Thus Ms Jiba’s
evidence was untruthful in all three of these respects.

[55] The matters that I have mentioned extend beyond mere incompetence or
unsuitability for the position of ANDPP. First, they demonstrate a serious lack

of appreciation or disregard of the duty of an advocate to be of assistance to the
court and to uphold the administration of justice. The fact that Ms Jiba was a
litigant in official capacity in these matters is no excuse. That was all the more
reason for her to conduct the litigation with the utmost trustworthiness and
integrity. Second, in all three matters Ms Jiba gave untruthful evidence under
oath and thus displayed dishonesty and a lack of integrity.
[56] The importance of legal practitioners being scrupulously honest in their
dealing with the court has been stressed time and again in this country – see eg
Toto v Special Investigating Unit 2001 (1) SA 673 (E) at 683A-F and the cases
there cited. As the court stressed in Kekana at 655G-656B, in our system of
justice the courts should be able to rely absolutely on the word of practitioners,
and for that reason there is a serious objection to allowing a practitioner who is
untruthful, and deceives or attempts to deceive a court, to continue in practice.
What is also relevant, but was not taken into account by the court a quo, is that
Ms Jiba has persisted throughout these proceedings with a denial under oath of
misconduct on her part. This shows a lack of insight into what she did wrong. In
itself it is an important factor which refers adversely on her character, and is a
weighty consideration in militating against any lesser stricture than her removal
from the roll – see  Vassen v Law Society of the Cape of Good Hope 1998 (4)
SA 532 (SCA) at 539B-C.

[57] As is mentioned in more detail below, the GCB is the watchdog of the
profession. As such, it bears an onerous duty owed to the public at large to
ensure that practitioners meet the high standards of integrity expected of them.
Instead of recognising the importance of the functions the GCB carries out as
custos morum of the profession, she berated it. She alleged, inter alia, that the
GCB had displayed ‘double standards’, that the founding affidavit of the GCB
‘seeks deliberately to mislead the court and indeed the public’ and that the
application ‘is therefore misconceived, mischievous and is designed to

embarrass me.’ All these allegations are unsubstantiated. None of this is
consistent with the high standards of integrity expected from a practicing
advocate.

[58] For the aforementioned reasons I am not persuaded that the court a quo
erred in finding that Ms Jiba was not a fit and proper person to practice as an
advocate. In fact the reasons to do so are more extensive than those relied on by
the court a quo. There is therefore not only no reason to interfere with the
exercise of the discretion of the court a quo in respect of the appropriate
sanction, but in my view it was correct in ordering Ms Jiba’s name to be
removed from the roll.

Mr Mrwebi
[59] Mr Mrwebi was a Special Director of Public Prosecutions and headed the
Specialised Commercial Crime Unit of the NPA. As I have said, he was directly
responsible for submitting the record of his decision in the FUL matter. He
failed to file a proper record and did not deliver his answering affidavit in time.
He gave no acceptable explanation for these failures. On his own evidence he
took no interest in these aspects.

[60] These instances of unreliability must be also viewed in the light of what
follows. Mr Mrwebi said that he took the decision to withdraw the fraud and
corruption charges against Mr Mdluli on 5 December 2011, after he had spoken
to Mr Mzinyathi earlier that day. He recorded the reasons for his decision in a
memorandum which he said was incorrectly dated 4 December 2011. In the
memorandum he expressed scepticism in respect of the merits of the charges,
but said that this was unimportant in view of his conclusion. His conclusion was
that ‘the offences for which Mdluli was charged fall squarely within the
mandate’ of the Inspector-General of Intelligence (IGI) in terms of the

Intelligence Services Oversight Act 40 of 1994. He concluded that the
prosecution of Mr Mdluli could therefore not continue and that the investigator
should advise the complainants to refer the complaint to the IGI.

[61] On 22 January 2013 Mr Mrwebi testified in disciplinary proceedings
instituted against Ms Breytenbach, after her suspension from office during
April 2012. His evidence under cross examination in respect of his engagement
with Mr Mzinyathi presented a sorry picture. He acknowledged that s 24(3) of
the NPA Act required the agreement of Mr Mzinyathi in order for the charges to
be withdrawn. He then attempted to say that he did reach such agreement with
Mr Mzinyathi on 5 December 2011. Then he referred to this as a ‘50/50
agreement’. Thereafter he referred to it as ‘substantial’ agreement. However,
earlier in his evidence he said that at their meeting, on 5 December 2011, Mr
Mzinyathi had expressed the view that there was a prima facie case against
Mr Mdluli. Mr Mrwebi eventually conceded that Mr Mzinyathi did not agree to
stop the prosecution at all.

[62] This part of the evidence reads as follows:
‘ADV TRENGOVE: He did not agree to stop the prosecution at all.  Correct?
ADV MRWEBI:
No, in respect of certain issues.
ADV TRENGOVE: He did not agree to stop the prosecution at all.
ADV MRWEBI:
In respect of certain issues.
ADV TRENGOVE: What do you mean by that?
ADV MRWEBI:
He identified, he agreed with me in terms of the problems that there
were that . . .
ADV TRENGOVE: Did he agree to stop the prosecution?
ADV MRWEBI:
The decision was mine.
ADV TRENGOVE: Did he agree to stop the prosecution?
ADV MRWEBI:
Okay let’s say he did not agree to stop the prosecution.
CHAIRPERSON:
Is that your answer?
ADV MRWEBI:
That’s my final answer.’

Notwithstanding this, Mr Mrwebi thereafter recanted by saying that he believed
that he had reached substantial agreement with Mr Mzinyathi on 5 December
2011. This prompted counsel to say that he would submit to the chairperson of
the enquiry that this evidence was patently dishonest. That would indeed be a
proper description of his evidence.

[63] By then Mr Mrwebi must have realised that his decision would not
withstand scrutiny. As an officer of court he should have conceded this. But
Mr Mrwebi persisted in opposing the relief claimed in respect of his decision in
the FUL matter. In his answering affidavit in that matter he glossed over his
conversation with Mr Mzinyathi on 5 December 2011. He then said that at his
subsequent meeting with Mr Mzinyathi and Ms Breytenbach, on 9 December
2011, they both agreed with him that there was a serious defect in the case
against Mr Mdluli on the merits. This was not only irrelevant, as the decision to
withdraw the charges had been taken on 5 December 2011, but was
emphatically shown to be untrue by the evidence of Mr Mzinyathi and the
conduct of Ms Breytenbach.

[64] In his answering affidavit in the present application, Mr Mrwebi
repeatedly said that on 5 December 2011 he had been under the impression that
he was only required to speak to Mr Mzinyathi in order to comply with s 24(3)
of the NPA Act, and that it had not been necessary to obtain his approval. This
directly contradicted his evidence at the disciplinary hearing.

[65] It is quite astonishing that a Special Director of Public Prosecutions could
have held the view that the investigation of fraud and corruption charges
relating to motor vehicle transactions fell within the functions of the IGI. When
Mr Mzinyathi and Ms Breytenbach questioned this during their meeting with
Mr Mrwebi on 9 December 2011 (they had spoken to the legal advisor of the

IGI on the previous day), Mr Mrwebi intimated that his withdrawal of the
charges on 5 December 2011 should be regarded as provisional, pending further
investigation.

[66] On 26 March 2012 a letter from the office of the IGI to the Acting
National Commissioner of the SAPS, dated 19 March 2012, was handed to Mr
Mrwebi. This letter conveyed the following clear position:
‘1.
We refer to your letter of the 22 February 2012 wherein you requested an opinion on
the reasons advanced by the National Prosecuting Authority for the withdrawal of the
criminal charges against Lt General Mdluli.
2.
In response to the Memorandum of Adv Mrwebi of the 4 December 2011 we advise
as follows:

2.1
The Inspector- General of Intelligence (IGI) derives her mandate from the
Constitution of the Republic of South Africa, 1996 and the Intelligence
Services Oversight Act, 1994 (Act 40 of 1994) which provides for the
monitoring of the intelligence and counter- intelligence activities of the
Intelligence Services,

2.2
Any investigation conducted by the Inspector-General is for the purposes of
intelligence oversight which must result in a report containing findings and
recommendations;

2.3
The mandate of the IGI does not extend to criminal investigations which are
court driven and neither can IGI assist the police in conducting criminal
investigations. The mandate of criminal investigations rests solely with the
Police;

As such we are of the opinion the reasons advanced by the NPA in support of the withdrawal
of the criminal charges are inaccurate and legally flawed. We therefore recommend that this
matter be referred back to the NPA for the institution of the criminal charges.’

[67] Without any further investigation or engagement, Mr Mrwebi responded
in writing to General Dramat of the SAPS on 30 March 2012 ‘that my decision
to instruct the withdrawal of the charges still stands and that the matter is
closed’. His subsequent explanation of this conduct, namely that it had been
agreed on 9 December 2011 that there was a serious defect in the case and that
nothing changed thereafter, has been shown to be false. The inference is
irresistible that Mr Mrwebi had throughout used his senior position in the
prosecutorial service to advantage Mr Mdluli and to ensure that he not be
prosecuted.

[68] As already set out, Mr Mrwebi lied about the events of both 5 and 9
December 2011 and abused his position. Not only has Mr Mrwebi shown
himself to be seriously lacking in integrity, but has failed in these proceedings
to have taken the court into his confidence and fully explained his actions. All
of this hallmarks him as a person unfit to practice as an advocate, particularly in
the light of the authorities already referred to when dealing with Mr Jiba. I have
no hesitation in endorsing the order of the court a quo that Mr Mrwebi should
be struck from the roll of advocates.

Cross appeal
[69] The GCB cross appeals against the following order of the court a quo:
‘The case against Mzinyathi (third respondent) is hereby dismissed with costs, such costs to
include the costs of two counsel up to the stage when the applicant (GCB) indicated that it
will not persist against the third respondent.’
The GCB submits that no order should have been made in respect of the costs of
Mr Mzinyathi.

[70] In the FUL matter, Murphy J made findings in respect of the credibility of
Mr Mzinyathi that required serious consideration of whether he was a fit and
proper person to continue to practice as an advocate. Murphy J inter alia said:
‘Taking account of how it was placed before the court by Mzinyathi, after FUL’s heads of
argument were filed, without explanation for its lateness, and its inconsistency with his
testimony at the disciplinary hearing, that he was presented with a fait accompli and was
unable to influence the decision because Mrwebi claimed to be functus officio, this evidence
of the DPP of North Gauteng, to the effect that he ultimately concurred, must regrettably be
rejected as un-creditworthy. The affidavit is a belated, transparent and unconvincing attempt
to re-write the script to avoid the charge of unlawfulness.’
These findings formed the heart of the complaint against Mr Mzinyathi in the
present application.

[71] In his answering affidavit in the present application, Mr Mzinyathi
explained the circumstances of his involvement and the context of his affidavit
in the FUL matter. In the result, the GCB did not engage with the answering
affidavit in its replying affidavit and at the hearing in the court a quo declared
that it left the matter of Mr Mzinyathi in the hands of the court.

[72] The GCB is the custos morum of the profession of advocates, in the
public interest, in much the same manner that the Law Societies act as the
guardians of the attorneys’ profession. As such it brings matters of alleged
misconduct of advocates to the attention of the court. The nature of an
application by the GCB to strike an advocate from the roll of advocates is a
disciplinary enquiry conducted by the court. In these sui generis proceedings the
GCB is therefore not in the position of an ordinary litigant. See Society of
Advocates of South Africa (Wits Division) v Edeling 1998 (2) SA 852 (W) at
859G-I. For these reasons our courts have over many decades recognised the
principle that unless the GCB had acted irresponsibly in bringing a disciplinary
matter to the attention of the court, the GCB should not be mulcted in costs,

even if the court decides that the practitioner should not be struck from the roll
or suspended. See the remarks of Tindall J in Incorporated Law Society v Taute
1931 TPD 12 at 17, approved by this court in Botha v Law Society, Northern
Provinces [2008] ZASCA 106; 2009 (1) SA 227 (SCA) para 22.

[73] It was with explicit recognition of this principle that counsel for Ms Jiba
submitted that no order as to costs should be made in the event of her appeal
being successful. The court a quo was not alive to this principle and therefore
misdirected itself. The GCB cannot be faulted for bringing the findings of
Murphy J to the attention of the court. It was its duty to do so. Even though the
answering affidavit of Mr Mzinyathi in the present application appeared to
contain an acceptable explanation of the criticisms of Murphy J, it was not for
the GCB to assume the function of the court and determine that the proceedings
in respect of Mr Mzinyathi should terminate. Its decision to leave the matter in
the hands of the court, was principled and responsible. In my judgment the GCB
should therefore not have been ordered to pay Mr Mzinyathi’s costs.

[74] I would therefore make the following order:
1 The appeal of the first appellant (Ms Jiba) and the second appellant (Mr
Mrwebi) are dismissed, and they are in each instance to pay the costs of the
respective appeal, such costs to include the costs of two counsel.
2  The cross appeal of the GCB in the case of the third respondent a quo, Mr
Mzinyathi, is upheld with costs of two counsel, and para 1 of the order of the
court a quo is altered to read as follows:
‘The case against Mzinyathi (third respondent) is dismissed with no order as to
costs.’

____________________

C H G Van der Merwe

Judge of Appeal

Appearances

For the First Appellant:
N Arendse SC (with him T Masuku and S
Fergus)

Instructed by:

Majavu Inc. Attorneys, Johannesburg;

Rampai Attorneys, Bloemfontein.

For the Second Appellant:

M Rip SC (with him R Ramawele SC)

Instructed by:

A M Vilakazi Tau Attorneys, Pretoria;

Lovius-Block, Bloemfontein

For the Appellant and Respondent
in Cross-Appeal:

S Burger SC (with him N T Mayosi)

Instructed by:
Bernhard van der Hoven Attorneys,
Pretoria;
Rosendorff Reitz Barry, Bloemfontein.

For the Respondent in
Cross-Appeal:
D B Ntsebeza SC (with him S X
Mapoma)

Instructed by:
Magaga Inc. Attorneys, Pretoria;
Honey Attorneys, Bloemfontein.