Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103; [2018] 3 All SA 622 (SCA); 2019 (1) SA 130 (SCA); 2019 (1) SACR 154 (SCA) (10 July 2018)

Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103; [2018] 3 All SA 622 (SCA); 2019 (1) SA 130 (SCA); 2019 (1) SACR 154 (SCA) (10 July 2018)

The majority held that the GCB failed to establish, on a preponderance of probabilities, that Jiba was not a fit and proper person to remain on the roll of advocates. Her conduct, while possibly incompetent in her official capacity, did not amount to dishonesty or personal gain, and she acted on legal advice. The complaints against her did not meet the threshold for striking off. As regards Mrwebi, the majority found that his misunderstanding and mishandling of the consultation requirement under the NPA Act constituted misconduct, but not dishonesty or personal gain. The appropriate sanction was suspension, not striking off. The application against Mzinyathi was dismissed, and the GCB was...

Citation
[2018] ZASCA 103
Parties
Appellant: Nomgcobo Jiba; Appellant: Lawrence Sithembiso Mrwebi; Respondent: General Council of the Bar of South Africa; Respondent: Sibongile Mzinyathi
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 July 2018
Case Number
141/17; 180/17
Procedural Posture
Civil Appeal / Appeal From Gauteng Division, Pretoria
Outcome
Appeal upheld in part; application to strike Jiba and Mrwebi from the roll dismissed; Mrwebi suspended for six months; application against Mzinyathi dismissed; counter-appeal on costs dismissed.
Judges
Shongwe, Leach, Seriti, Van der Merwe, Mocumie
Legal Topics
Fit and Proper Person, Striking Off Roll, Advocate Misconduct, Admission of Advocates Act, National Prosecuting Authority Act, Costs in Professional Discipline
Civil Procedure Constitutional Law Fit and Proper Person Striking Off Roll Advocate Misconduct Admission of Advocates Act National Prosecuting Authority Act Costs in Professional Discipline

Case Brief

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Parties

Nomgcobo Jiba

Appellant

Lawrence Sithembiso Mrwebi

Appellant

General Council of the Bar of South Africa

Respondent

Sibongile Mzinyathi

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division, Pretoria

Legal Issues

  1. 1 Whether the appellants, Jiba and Mrwebi, are fit and proper persons to remain on the roll of advocates.
  2. 2 Whether the conduct of Jiba and Mrwebi in handling the Mdluli, Booysen, and Zuma matters amounts to professional misconduct.
  3. 3 Whether the General Council of the Bar acted responsibly in bringing the application against Mzinyathi and whether a costs order against it was justified.

Ratio Decidendi

The majority held that the GCB failed to establish, on a preponderance of probabilities, that Jiba was not a fit and proper person to remain on the roll of advocates. Her conduct, while possibly incompetent in her official capacity, did not amount to dishonesty or personal gain, and she acted on legal advice. The complaints against her did not meet the threshold for striking off. As regards Mrwebi, the majority found that his misunderstanding and mishandling of the consultation requirement under the NPA Act constituted misconduct, but not dishonesty or personal gain. The appropriate sanction was suspension, not striking off. The application against Mzinyathi was dismissed, and the GCB was...

Court Disposition

Appeal upheld in part; application to strike Jiba and Mrwebi from the roll dismissed; Mrwebi suspended for six months; application against Mzinyathi dismissed; counter-appeal on costs dismissed.

Orders

  • The appeal is upheld with no order as to costs.
  • The counter-appeal is dismissed with costs including the costs of two counsel.