Fit and proper: Advocates and legal practice

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.

Note: Footnotes omitted and emphasis added

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 (Witwatersrand 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 [ie 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).’