ZACC 23
Date of Hearing: 14 March 2019
Judgement Date:27 June 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday, 27 June 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Supreme Court of Appeal (SCA), which overturned the judgment of the High Court of South Africa, Gauteng Division, Pretoria (High Court). The application concerns the acceptable standard of conduct for determining whether advocates, including state advocates, are fit and proper persons to hold office in terms of the Admission of Advocates Act 74 of 1964 (the Admission Act).
In April 2015 the General Council of the Bar of South Africa (GCB) instituted an application in the High Court against the respondents, Ms Nomgcobo Jiba, Mr Lawrence Mrwebi and Mr Sibongile Mzinyathi. In that application, the GCB sought an order to remove the respondents, who hold various senior positions within the office of the National Prosecuting Authority (NPA), from the roll of advocates. Alternatively, the GCB sought an order to suspend them from practising as advocates. The application by the GCB arose from complaints regarding how the respondents had conducted themselves in three cases, namely: Booysen v Acting National Director of Public Prosecutions (the Booysen case), Freedom Under Law v National Director of Public Prosecutions (the Mdluli case) and Zuma v Democratic Alliance (the Spy Tapes case).
The High Court found that Ms Jiba and Mr Mrwebi were not fit and proper persons to continue to practise as advocates. This finding was based on complaints relating to how they handled the Mdluli case. Regarding the Booysen case, the High Court held that no case had been made for the removal or suspension of the respondents from the roll. The High Court subsequently granted an order to the effect that both the names of Ms Jiba and Mr Mrwebi be struck from the roll, but dismissed the application against Mr Mzinyathi with costs.
Aggrieved by the High Court’s decision, Ms Jiba and Mr Mrwebi launched an appeal in the SCA, whilst the GCB raised a cross-appeal against the costs order granted in favour of Mr Mzinyathi. The majority of the SCA ruled that the GCB failed to establish the alleged offending conduct on the part of Ms Jiba and saw no need to determine whether she was a fit and proper person to remain on the roll of advocates. With regard to Mr Mrwebi, the majority was satisfied that the alleged offending misconduct had been established and that he was not fit to practise as an advocate. However, the majority found that striking him from the roll was inappropriate given that he did not personally gain from his actions. The GCB’s cross-appeal was dismissed by the majority. The minority would have dismissed Ms Jiba and Mr Mrwebi’s appeals and upheld the cross-appeal against the costs order.
Before the Constitutional Court, the GCB submitted that the application for striking off is a unique statutory process of a disciplinary nature. It contended that this matter raised constitutional issues, given that it calls for the interpretation and application of the NPA Act. Moreover, the GCB was of the view that an arguable point of law of general public importance was raised.
Ms Jiba submitted that the application brought by the GCB is unprecedented and had far-reaching constitutional implications for the independence of the NPA. Furthermore, she pointed out that the allegations did not relate to her professional conduct as counsel but as a party to the litigation in a representative capacity. Mr Mrwebi on the other hand argued that the SCA did not take into account the narrative of the purported motives for his actions and their nature. For his part, Mr Mzinyathi submitted that an award of costs is discretionary and generally given to successful litigants and, in the absence of a challenge that the discretion was exercised improperly, the award of costs was appropriate.
In a unanimous judgment, penned by Jafta J, the Court found that the GCB has not established that the matter falls within the jurisdiction of this Court. The Court noted that the GCB’s cause of action was based on section 7 of the Admission Act and nothing else. The Court found that the interpretation and application of the Admission Act does not intrinsically raise a constitutional issue. The Court further found that the GCB did not seek to protect a constitutional right. Instead, all that it sought to do was to enforce the Admission Act, so as to protect the public and preserve the proper functioning of the administration of justice. The Court remarked that the apparently incorrect determination of facts by the majority in the SCA does not raise a constitutional issue. If what is at issue in a particular case is the determination of facts, it follows that the jurisdiction of this Court is not engaged.
Concerning the NPA Act, the Court noted that the claim advanced by the GCB is a self-standing claim given that it is based within the four-corners of the Admission Act. As a result, the NPA Act finds no application in this matter, since it does not regulate the admission of advocates. In addition to this, the Court held that the assertion by the GCB that the matter raised an arguable point of law of general public importance has no substance. Of importance to note in this regard was that the divergence between the majority and the minority in the SCA did not flow from the application of legal principles, but from an evaluation of the facts.
With respect to the cross-appeal, this Court acknowledged that reliance on section 9(1) of the Constitution by the majority in the SCA clothed this Court with jurisdiction. However, the Court reasoned that the principle that costs follow the result is not applicable to proceedings of this nature as such proceedings are initiated in the interests of the general public. The Court emphasised that the GCB’s role in instituting these proceedings is to enable the court to exercise its disciplinary powers. The Court recognised that an order of costs against the GCB is permissible only in circumstances where it has conducted itself in an unacceptable manner. The Court held that although the appeal on the merits has failed, the GCB should not be ordered to pay costs. In addition to this, the Court held that even though the GCB has succeeded in having the costs order made against it overturned, it is fair not to order the respondents to pay its costs too. Given these considerations, the Court found that it need not make an order as to costs.
The Full judgment here