Deputy prosecutions boss Nomgcobo Jiba wants to get back to work following a Supreme Court of Appeal (SCA) ruling in her favour, and her lawyer has wasted no time in making sure that his client gets her wish.
The advocate, Zola Majavu, has written to the National Director of Public Prosecutions (NDPP) to request that Jiba be allowed to resume her duties at the National Prosecuting Authority (NPA).
Jiba and her colleague, Lawrence Mrwebi, were struck from the roll of advocates on September 15, 2016, after Judge Francis Legodi in the North Gauteng High Court in Pretoria agreed with the General Council of the Bar (GCB) of SA that they were “not fit and proper” to be advocates.
The case went to the SCA in Bloemfontein and on Tuesday, the Appeal Court ruled in favour of Jiba and Mrwebi.
The judgment was split among five judges – three ruled in favour of Jiba and Mrwebi and the others disagreed and gave a dissenting judgment.
Speaking to News24 on Wednesday morning, Majavu said Jiba had initially asked to be placed on special leave while the SCA matter was pending.
However, he said his client had been “vindicated”.
“People in some quarters who are not happy [with the judgment] are now attacking the judges. It is absolute rubbish. It is an insult to the judiciary and those judges.
“Judges differ every day and it is not the first time that there is a minority and majority judgment,” he said.
“I have written to her employer to say, in the light of her judgment and mindful of the fact that she had asked to be placed on special leave, now that the reasons she asked that [to] be placed on leave have come and gone… she tenders her services to return to work. But obviously it will be a call that her employer must make.”
It is not yet clear if the GCB intends to take the matter further to the Constitutional Court.
The GCB said in a statement on Wednesday that they noted the SCA’s judgment.
Chairperson Vuyani Ngalwana, SC, said the judgment raised several important issues which required “careful consideration” before the executive committee could decide.
He said the bar would release a statement once members of the executive committee read the judgment and consulted with counsel.
In the majority judgment, authored by Appeal Court Judge Jeremiah Shongwe, the SCA found that the GCB could not establish any misconduct on Jiba’s part.
The court found that the High Court had misdirected itself in striking Mrwebi from the roll and that it failed to consider why suspension was not an appropriate sanction.
The High Court ruling followed Jiba’s and Mrwebi’s decision to drop charges against former Crime Intelligence head Richard Mdluli, who was facing several charges.
The SCA said, when the High Court gave its ruling, it described Mdluli and detailed his personality. It also 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 way Jiba and Mrwebi handled the Mdluli case,” Shongwe wrote.
He said the High Court had referred to a letter Mdluli had written to former president Jacob Zuma, the Minister of Safety and Security and the police commissioner, 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.”
He also criticised the High Court’s finding that Jiba and Mrwebi did not only bring the prosecuting authority and legal profession into disrepute, but had also brought the office of the president of the Republic of South Africa into disrepute after they failed to prosecute Mdluli.
‘Attributed to incompetence, naivety’
“Surely this is irrelevant and cannot be a good reason singularly or cumulatively to remove an advocate from the roll.”
Shongwe also added: “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 [Deputy National Director of Public Prosecutions] but not sufficient enough to be removed from the roll of advocates.”
Turning to Mrwebi, he found that he “genuinely, did not comprehend what the concept ‘in consultation’ meant”. However, the concessions he made under cross-examination indicated that he was at most, confused.
“As regards to 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.”
NPA spokesperson Luvuyo Mfaku told News24 on Tuesday that the NPA was “pleased with the judgment of the SCA as it vindicates the rule of law”.
Meanwhile, in a statement issued on Tuesday, minority rights lobby group AfriForum said it would proceed at “full capacity” to privately prosecute Jiba on charges of fraud and perjury.
Freedom Under Law said earlier that it would continue with a court process seeking a disciplinary process against Jiba and Mrwebi.
In December 2017, the North Gauteng High Court set aside the decision by NPA boss Shaun Abrahams to withdraw charges against Jiba.
The court also ruled that former president Jacob Zuma should institute an inquiry into their conduct.
This comes after Abrahams withdrew charges of perjury and fraud against Jiba in August 2015.
The charges related to her decision to prosecute Johan Booysen, the former head of the Hawks in KwaZulu-Natal, on racketeering charges.
A full Bench of the North Gauteng High Court also ruled in December that Abrahams should vacate his seat as NDPP.
Abrahams took the case to the Constitutional Court and judgment is yet to be delivered.