High court ‘erred in striking Jiba off roll’
• High court judgment is clouded, advocate contends in bid for appeal
The high court judgment in striking deputy prosecutions head Nomgcobo Jiba from the roll of advocates was “clouded” by a perception that former police intelligence head Richard Mdluli was a “bad guy”, said Jiba’s counsel in court on Thursday. Jiba and Lawrence Mrwebi, head of the specialised commercial crimes unit, are asking the High Court in Pretoria for leave to appeal against its judgment in September.
The high court ruling to strike deputy prosecutions head Nomgcobo Jiba from the roll of advocates was “clouded” by a perception that former police intelligence head Richard Mdluli was a “bad guy”, said Jiba’s counsel in court on Thursday.
Jiba, deputy national director of public prosecutions, and Lawrence Mrwebi, head of the specialised commercial crimes unit, are asking the High Court in Pretoria for leave to appeal against its judgment, striking the two off the roll as not fit and proper to be advocates.
Being struck off as advocates would disqualify them for their posts at the National Prosecuting Authority (NPA). The application for their striking off was made by the General Council of the Bar (GCB), the national advocates body, after they had been rebuked in four judgments, two of them by the Supreme Court of Appeal.
The judgments related to three cases, all politically controversial. A full bench of the court — judges Francis Legodi and Wendy Hughes — found the conduct of the two unworthy of the advocates’ profession on a number of grounds.
The most damming of these was that, when they dropped charges against Mdluli, they had been determined to let him off the hook, despite a prima facie case and in the face of contrary legal advice.
But Jiba’s counsel, Norman Arendse SC, said that, while there was a public perception that Mdluli was a “bad guy” and there were indeed “very serious” allegations against him, these were untested allegations. Nor was there “one iota of evidence” of a connection between Jiba and Mdluli, or even that she knew Mdluli, he said.
The only link — which was speculative and made only in the media — was a letter in the runup to the ANC’s Mangaung elective conference from Mdluli to the president in which he offered to deliver him victory if he could return to work.
The court’s “perception — based on the allegations, which remain untested — against Mdluli, that he was a bad guy clouded this court’s judgment”.
But counsel for the GCB, Schalk Burger SC, said Arendse’s argument could only be made if “you live in a news blackout”. Even if the link between Jiba and Mdluli were only a matter of public perception, when it came to NPA leaders, public perception “put an enormous responsibility on the holders of these offices” to act with integrity and honesty and to be competent.
Burger said that Jiba’s conduct in the Freedom Under Law litigation had been dishonest and that she lied often.
“If you want to withdraw a charge against a senior policeman linked to the president and you lie about it, it is strikeable,” he said.
He said the GCB’s case had been based on a “pattern of conduct”, and if her conduct in the Mdluli matter had been that heinous, the Supreme Court of Appeal would have taken her to task for it (as it did in other cases), but it did not.
Striking her off was too harsh a punishment, he said.
But Arendse was closely questioned by the bench on this argument, with Legodi suggesting that her fitness to be an advocate was not the subject of the appeal court litigation and that the high court had new information before it that the appeal court did not have.
Counsel for Mrwebi, Mervyn Rip SC, also said striking off was too harsh and that the most Mrwebi could be accused of was “padding” his explanation for the consultations he had when the decision to withdraw against Mdluli was made. This was not strikeable conduct.
Judgment was reserved.
ARENDSE’S ARGUMENT COULD ONLY BE MADE ‘IN A NEWS BLACKOUT’