Unfit and improper: 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

Van der Merwe JA (Leach JA concurring)

[32] I have had the benefit of reading the judgment of Shongwe ADP, and find myself respectfully unable to agree with his conclusions in respect of the appeal and cross appeal. In my judgment the appeals of Ms Nomgcobo Jiba (Ms Jiba) and Mr Lawrence Sithembiso Mrwebi (Mr Mrwebi) should fail and the cross appeal of the General Council of the Bar (the GCB) should succeed.

[33] An advocate is required to be of ‘complete honesty, reliability and integrity’. See General Council of the Bar of South Africa v Geach and others [2012] ZASCA 175; 2013 (2) SA 52 (SCA) paras 126-127. It goes without saying that these qualities are particularly required of an advocate who holds high public office in the administration of justice.

[34] Whether a person should be struck from the roll of advocates for failure to comply with these standards, is determined by a three-stage process. The first entails a factual finding in respect of the alleged offending conduct. If that conduct is established, the second stage comprises a finding as to whether the person is a fit and proper person to continue to practise. If not, the third stage involves the exercise of a discretion in respect of whether a removal from the roll of advocates or suspension from practise is appropriate. This court, on appeal, has limited grounds to interfere with such discretion. It can only do so if the court a quo acted capriciously, or on a wrong principle, or if it failed to bring an unbiased judgment to bear on the issues or did not have substantial reasons – see Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) at 654D-G.

[35] In light of these considerations I deal with the appeals of Ms Jiba and Mr Mrwebi in turn.

Ms Jiba

[36] Ms Jiba was a Deputy National Director of Public Prosecutions. During the period from 28 December 2011 to 30 August 2013 she acted as the National Director of Public Prosecutions and thus headed the National Prosecuting Authority (NPA). The contention that Ms Jiba is not a fit and proper person to continue to practise as an advocate was based on her alleged conduct in her capacity as Acting National Director of Public Prosecutions (ANDPP) in relation to three matters.

[37] In the first matter, Freedom Under Law (FUL), a public interest organisation, inter alia, sought the review and setting aside of the decision of Mr Mrwebi, who was at the time a Special Director of Public Prosecutions, to withdraw charges of fraud and corruption against Lieutenant General Richard Mdluli. At the time Mr Mdluli was the head of the Crime Intelligence Unit of the South African Police Service (SAPS). FUL succeeded in the Gauteng Division, Pretoria where Murphy J reviewed and set aside the decision to withdraw these charges against Mr Mdluli. His judgment is reported as Freedom Under Law v National Director of Public Prosecutions and others 2014 (1) SA 254 (GNP) (the FUL matter). An appeal to this court against that part of the order of Murphy J was unsuccessful. In National Director of Public Prosecutions and others v Freedom Under Law [2014] ZASCA 58; 2014 (4) SA 298 (SCA) Brand JA, speaking for a unanimous court, held that Mr Mrwebi had failed to comply with the provisions of s 24(3) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act), which required him to take the decision in consultation with, that is with the concurrence of, the Director of Public Prosecutions for the Gauteng Division, Pretoria (Mr Mzinyathi).

[38] In the second matter, Major-General Johan Booysen, in essence, sought the review and setting aside of the decision of Ms Jiba to authorise the institution of a prosecution against him. The matter served before Gorven J in the KwaZulu-Natal Local Division, Durban who granted the relief claimed. Gorven J found that the decision was irrational. His judgment is reported as Booysen v Acting National Director of Public Prosecutions and others [2014] 2 All SA 391 (KZD) (the Booysen matter).

[39] The relevant aspects of the third matter appear from the judgment of this court in Zuma v Democratic Alliance and others [2014] ZASCA 101; [2014] 4 All SA 35 (SCA) (the Zuma matter). This judgment formed part of protracted litigation between Mr Zuma and the Democratic Alliance and dealt with the precise ambit of a previous order that the ANDPP produce and lodge the record relating to the decision to discontinue the prosecution of Mr Zuma.

[40] The court a quo based its finding that Ms Jiba was not a fit and proper person to practise as an advocate, only on her conduct in the FUL matter. In the process it rejected the contentions of the GCB that the conduct of Ms Jiba in the Booysen and Zuma matters also justified her being struck from the roll of advocates. In this court, counsel for Ms Jiba argued that in the absence of a cross appeal it was not open to the GCB, on appeal, to rely on the conduct of Ms Jiba in the Booysen and Zuma matters.

[41] This argument is without merit. It is trite that on appeal a respondent may seek to justify the order appealed against on any ground that the record of appeal allows. A cross appeal is only required when a respondent seeks a variation of the order of the court a quo, as is the case here in respect of the costs order against the GCB. The reason for this is that an appeal lies only against an order, not the reasons for the order. It matters not that the reasons for the order may to some extent have been incorporated in the order itself. The court a quo made the order in respect of Ms Jiba that the GCB had proposed. A cross appeal in respect thereof would be nonsensical. Thus, the GCB was entitled to seek to justify this order with reference to the Booysen and Zuma matters.

[42] The essential issue in the Zuma matter was whether the record of decision that had been submitted by Ms Jiba should have included certain tapes or transcripts, alleged by Mr Zuma to be confidential, and internal memoranda of the office of the NDPP relating to the tapes and transcripts. Navsa ADP said that in her answering affidavit Ms Jiba failed to adopt a position in respect of the former and resorted to ‘a metaphorical shrugging of the shoulders’. He said that this displayed a baffling lack of interest in being of assistance to the court. In respect of the internal memoranda, Navsa ADP stated that ‘Ms Jiba provided an “opposing’’ affidavit in generalised, hearsay and almost meaningless terms’. Navsa ADP added that the generalisation resorted to by Ms Jiba was, ‘to say the least, disingenuous’. Thus, this court held in the Zuma matter that Ms Jiba had acted in a singularly unhelpful manner and had been less than truthful.

[43] In her answering affidavit in the Booysen matter, Ms Jiba stated that she had based the decision to authorise the prosecution of Mr Booysen on, inter alia, four documents that were annexed to her answering affidavit, as annexures NJ2, NJ3, NJ4 and NJ5. She said that Mr Booysen ‘is directly implicated under oath in the statements placed before me in Annexures “NJ2” to “NJ5”’.

[44] In this regard Gorven J held as follows:

‘[31] The submissions of Mr Booysen in his replying affidavit can be summarised as follows. Two of the annexures are sworn statements made under the name of Colonel Aiyer. These are annexures NJ2 and NJ4 respectively. Mr Booysen describes these as statements which concern “office politics” and submits that they in no way implicate him in any of the offences with which he has been charged. The second of these, in addition to not implicating him in any of the offences in question, was deposed to on 31 August 2012, some two weeks after the first impugned decision was taken. The document referred to as a statement by Mr Danikas, annexure NJ3, is not a sworn statement. It is not even signed by anyone. It is not dated. Even if it can be attributed to the named person and even if it was a sworn statement as claimed by the NDPP, the contents do not cover the period dealt with in the indictment except for one event which does not relate to Mr Booysen. As regards annexure NJ5, this does not implicate Mr Booysen in any of the offences in question.

[32] In argument, the respondents did not in any way challenge the above factual submissions concerning the nature and content of the annexures in question. The factual submissions appear to me to be accurate.’

[45] Counsel for Ms Jiba pointed out that annexure NJ3 was patently not an affidavit, it had not even been signed, and argued that it is improbable that Ms Jiba intended to express a deliberate falsehood or attempted to mislead the court in respect of this annexure. That may be so, but the force of the argument is reduced by the fact that Ms Jiba did not explain in her answering affidavit, in the present matter, that she had mistakenly described annexure NJ3 as a statement under oath. In any event, this could not explain the objectively false statements by Ms Jiba under oath that she had regard to all these annexures when she made the decision to authorise the prosecution of Mr Booysen and that Mr Booysen had been directly implicated in the alleged crimes in all of these statements. The court a quo should, in my view, have taken cognisance thereof that unexplained false statements were made by an advocate acting as the NDPP in respect of the essence of the Booysen matter, namely the reasons for the decision to authorise the prosecution.

[46] In the FUL matter a dismally incomplete record of the decision had been filed out of time. I am in agreement with counsel for Ms Jiba that in terms of rule 53(1) the primary obligation to submit the record of decision rested on Mr Mrwebi. He had taken the decision to withdraw the fraud and corruption charges against Mr Mdluli. But that did not absolve Ms Jiba from all responsibility. Indeed, in her answering affidavit in the present application she did not rely on the absence of an obligation on her to ensure the filing of a proper record of the decision. Instead, she attempted unconvincingly to justify the filing of an incomplete record on the basis of uncertainty at the time as to what should be included in such a record of decision. As the head of the NPA, who had been cited in that capacity as a party in the FUL matter, Ms Jiba bore the overall responsibility for the submission of a proper record of the decision. It suffices to say that this conduct displayed at least a lack of appreciation of the duty of an advocate to assist the court to come to a speedy and just conclusion.

[47] This is also illustrated by the following. On 8 October 2012, FUL delivered a supplementary founding affidavit in terms of rule 53(4). On 14 March 2013 it filed a further supplementary affidavit. This was necessitated by the paucity of the records filed and by further documents that had become publicly available. The respondents in the FUL matter, including Ms Jiba and Mr Mrwebi, had to file answering affidavits by no later than 2 May 2013. They did not do so. On 5 June 2013, Ledwaba DJP issued a directive obliging the respondents to deliver answering affidavits by no later than 24 June 2013. One would have thought that the timeous filing of the answering affidavits of Ms Jiba and Mr Mrwebi would in the circumstances have become a matter of critical concern to them. On her own evidence, however, Ms Jiba made no attempt to ensure compliance with the directive. New counsel was briefed to draft the answering affidavits of Ms Jiba and Mr Mrwebi only on 18 June 2013. Nevertheless, by 21 June 2013 counsel had managed to prepare draft answering affidavits and made them available for perusal and comments to be given by midmorning on Sunday, 23 June 2013. Ms Jiba said that she was unaware hereof. On 26 June 2013, two days after the deadline for the filing of the answering affidavits, Ms Jiba had an unscheduled meeting with counsel in chambers. Counsel personally informed her that the draft answering affidavits had been made available. This notwithstanding, the answering affidavits were only filed on 4 July 2013.

[48] Mr Mrwebi took the decision to withdraw the fraud and corruption charges against Mr Mdluli on 4 or 5 December 2011. These charges related only to certain motor vehicle transactions. During April 2012, two members of the NPA, advocates G Breytenbach and J M Ferreira, submitted a memorandum to Ms Jiba. This memorandum was referred to by the parties as the Breytenbach memorandum and for convenience I continue to do so. The Breytenbach memorandum implored Ms Jiba to review the decision of Mr Mrwebi to withdraw the fraud and corruption charges in respect of the motor vehicle transactions. It also mentioned that new evidence of possible further similar offences by Mr Mdluli had since become available.

[49] Ms Jiba did not mention the Breytenbach memorandum in her answering affidavit in the FUL matter. In the founding affidavit in the present matter, the GCB suggested that this failure to disclose the Breytenbach memorandum constituted an attempt to mislead the court and that suggestion found favour with the court a quo. However, FUL had obtained the Breytenbach memorandum and it formed part of its papers in the FUL matter. This is not clear form the record, but I accept that it was probably submitted with one of FUL’s supplementary founding affidavits. Although Ms Jiba did not appear to be aware that the Breytenbach memorandum formed part of the papers, I accept that it is improbable that she intended to conceal the Breytenbach memorandum.

[50] However, this is not the end of the enquiry for present purposes. Ms Jiba stated in her answering affidavit, in the FUL matter, that the decision of Mr Mrwebi ‘had not been brought to my office for consideration in terms of the regulatory framework’ and that she had not received a request to review the decision by a person whom she considered to be relevant. She went so far as to say that to ‘descend into the arena without any representations being made to my office’ would prejudice Mr Mdluli or any other interested party.

[51] A different picture emerged from Ms Jiba’s answering affidavit in the present matter. First, she said that immediately after she learnt that the charges against Mr Mdluli had been withdrawn, she called for a briefing by Mr Mrwebi and Mr Chauke (who had withdrawn murder charges against Mr Mdluli) and was satisfied with the reasons that were advanced for the withdrawal of the charges. Thus, Ms Jiba in fact did review or reconsider the withdrawal of the charges.

[52] Second, Ms Jiba elaborated as follows in respect of the Breytenbach memorandum:

‘135. I deny that the memorandum received from Adv Breytenbach, was from a person or party that I considered relevant or was obliged to consider relevant. It therefore did not constitute representations from a person contemplated by the provisions of section 22(2)(c) of the NPA Act, or at all. It was a document from a prosecutor who failed to execute tasks assigned to her by her superior. Pursuant to the suspension of Adv Breytenbach another team of prosecutors was appointed to take the case forward, namely Adv Becker and Adv Viljoen. There were memoranda submitted by these prosecutors in terms of which the opposite view was expressed.’

[53] This view about the Breytenbach memorandum could not have been honestly held. Ms Breytenbach was the regional head of the Specialised Commercial Crime Unit in Pretoria. This memorandum was submitted by ‘the lead prosecutors in the matter’. In their 24 page memorandum they made a persuasive case that Mr Mdluli should be prosecuted on the fraud and corruption charges relating to the motor vehicle transactions. The Breytenbach memorandum was certainly worthy of consideration. The statement that it emanated from a person that was not and should not have been considered relevant, is simply spurious.

[54] Third, after the answering affidavit of Ms Jiba in the present matter had been filed, the GCB requested copies of the memoranda by advocates Becker and Viljoen, in terms of the provisions of rule 35(12). Only one memorandum, dated 25 June 2013, was produced. It did not at all convey that the prosecution of Mr Mdluli should not proceed. It only conveyed that the investigation of the fraud and corruption charges in respect of the motor vehicle transactions and four other matters of similar nature, had not yet been concluded. Thus Ms Jiba’s evidence was untruthful in all three of these respects.

[55] The matters that I have mentioned extend beyond mere incompetence or unsuitability for the position of ANDPP. First, they demonstrate a serious lack of appreciation or disregard of the duty of an advocate to be of assistance to the court and to uphold the administration of justice. The fact that Ms Jiba was a litigant in official capacity in these matters is no excuse. That was all the more reason for her to conduct the litigation with the utmost trustworthiness and integrity. Second, in all three matters Ms Jiba gave untruthful evidence under oath and thus displayed dishonesty and a lack of integrity.

[56] The importance of legal practitioners being scrupulously honest in their dealing with the court has been stressed time and again in this country – see eg Toto v Special Investigating Unit 2001 (1) SA 673 (E) at 683A-F and the cases there cited. As the court stressed in Kekana at 655G-656B, in our system of justice the courts should be able to rely absolutely on the word of practitioners, and for that reason there is a serious objection to allowing a practitioner who is untruthful, and deceives or attempts to deceive a court, to continue in practice.

What is also relevant, but was not taken into account by the court a quo, is that Ms Jiba has persisted throughout these proceedings with a denial under oath of misconduct on her part. This shows a lack of insight into what she did wrong. In itself it is an important factor which refers adversely on her character, and is a weighty consideration in militating against any lesser stricture than her removal from the roll – see Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at 539B-C.

[57] As is mentioned in more detail below, the GCB is the watchdog of the profession. As such, it bears an onerous duty owed to the public at large to ensure that practitioners meet the high standards of integrity expected of them. Instead of recognising the importance of the functions the GCB carries out as custos morum of the profession, she berated it. She alleged, inter alia, that the GCB had displayed ‘double standards’, that the founding affidavit of the GCB ‘seeks deliberately to mislead the court and indeed the public’ and that the application ‘is therefore misconceived, mischievous and is designed to embarrass me.’ All these allegations are unsubstantiated. None of this is consistent with the high standards of integrity expected from a practicing advocate.

[58] For the aforementioned reasons I am not persuaded that the court a quo erred in finding that Ms Jiba was not a fit and proper person to practice as an advocate. In fact the reasons to do so are more extensive than those relied on by the court a quo. There is therefore not only no reason to interfere with the exercise of the discretion of the court a quo in respect of the appropriate sanction, but in my view it was correct in ordering Ms Jiba’s name to be removed from the roll.

Mr Mrwebi

[59] Mr Mrwebi was a Special Director of Public Prosecutions and headed the Specialised Commercial Crime Unit of the NPA. As I have said, he was directly responsible for submitting the record of his decision in the FUL matter. He failed to file a proper record and did not deliver his answering affidavit in time. He gave no acceptable explanation for these failures. On his own evidence he took no interest in these aspects.

[60] These instances of unreliability must be also viewed in the light of what follows. Mr Mrwebi said that he took the decision to withdraw the fraud and corruption charges against Mr Mdluli on 5 December 2011, after he had spoken to Mr Mzinyathi earlier that day. He recorded the reasons for his decision in a memorandum which he said was incorrectly dated 4 December 2011. In the memorandum he expressed scepticism in respect of the merits of the charges, but said that this was unimportant in view of his conclusion. His conclusion was that ‘the offences for which Mdluli was charged fall squarely within the mandate’ of the Inspector-General of Intelligence (IGI) in terms of the Intelligence Services Oversight Act 40 of 1994. He concluded that the prosecution of Mr Mdluli could therefore not continue and that the investigator should advise the complainants to refer the complaint to the IGI.

[61] On 22 January 2013 Mr Mrwebi testified in disciplinary proceedings instituted against Ms Breytenbach, after her suspension from office during April 2012. His evidence under cross examination in respect of his engagement with Mr Mzinyathi presented a sorry picture. He acknowledged that s 24(3) of the NPA Act required the agreement of Mr Mzinyathi in order for the charges to be withdrawn. He then attempted to say that he did reach such agreement with Mr Mzinyathi on 5 December 2011. Then he referred to this as a ‘50/50 agreement’. Thereafter he referred to it as ‘substantial’ agreement. However, earlier in his evidence he said that at their meeting, on 5 December 2011, Mr Mzinyathi had expressed the view that there was a prima facie case against Mr Mdluli. Mr Mrwebi eventually conceded that Mr Mzinyathi did not agree to stop the prosecution at all.

[62] This part of the evidence reads as follows:

‘ADV TRENGOVE: He did not agree to stop the prosecution at all. Correct?
ADV MRWEBI: No, in respect of certain issues.
ADV TRENGOVE: He did not agree to stop the prosecution at all.
ADV MRWEBI: In respect of certain issues.
ADV TRENGOVE: What do you mean by that?
ADV MRWEBI: He identified, he agreed with me in terms of the problems that there were that . . .
ADV TRENGOVE: Did he agree to stop the prosecution?
ADV MRWEBI: The decision was mine.
ADV TRENGOVE: Did he agree to stop the prosecution?
ADV MRWEBI: Okay let’s say he did not agree to stop the prosecution.
CHAIRPERSON: Is that your answer?
ADV MRWEBI: That’s my final answer.’

Notwithstanding this, Mr Mrwebi thereafter recanted by saying that he believed that he had reached substantial agreement with Mr Mzinyathi on 5 December 2011. This prompted counsel to say that he would submit to the chairperson of the enquiry that this evidence was patently dishonest. That would indeed be a proper description of his evidence.

[63] By then Mr Mrwebi must have realised that his decision would not withstand scrutiny. As an officer of court he should have conceded this. But Mr Mrwebi persisted in opposing the relief claimed in respect of his decision in the FUL matter. In his answering affidavit in that matter he glossed over his conversation with Mr Mzinyathi on 5 December 2011. He then said that at his subsequent meeting with Mr Mzinyathi and Ms Breytenbach, on 9 December 2011, they both agreed with him that there was a serious defect in the case against Mr Mdluli on the merits. This was not only irrelevant, as the decision to withdraw the charges had been taken on 5 December 2011, but was emphatically shown to be untrue by the evidence of Mr Mzinyathi and the conduct of Ms Breytenbach.

[64] In his answering affidavit in the present application, Mr Mrwebi repeatedly said that on 5 December 2011 he had been under the impression that he was only required to speak to Mr Mzinyathi in order to comply with s 24(3) of the NPA Act, and that it had not been necessary to obtain his approval. This directly contradicted his evidence at the disciplinary hearing.

[65] It is quite astonishing that a Special Director of Public Prosecutions could have held the view that the investigation of fraud and corruption charges relating to motor vehicle transactions fell within the functions of the IGI. When Mr Mzinyathi and Ms Breytenbach questioned this during their meeting with Mr Mrwebi on 9 December 2011 (they had spoken to the legal advisor of the IGI on the previous day), Mr Mrwebi intimated that his withdrawal of the charges on 5 December 2011 should be regarded as provisional, pending further investigation.

[66] On 26 March 2012 a letter from the office of the IGI to the Acting National Commissioner of the SAPS, dated 19 March 2012, was handed to Mr Mrwebi. This letter conveyed the following clear position:

‘1. We refer to your letter of the 22 February 2012 wherein you requested an opinion on the reasons advanced by the National Prosecuting Authority for the withdrawal of the criminal charges against Lt General Mdluli.
2. In response to the Memorandum of Adv Mrwebi of the 4 December 2011 we advise as follows:

2.1 The Inspector- General of Intelligence (IGI) derives her mandate from the Constitution of the Republic of South Africa, 1996 and the Intelligence Services Oversight Act, 1994 (Act 40 of 1994) which provides for the monitoring of the intelligence and counter- intelligence activities of the Intelligence Services,

2.2 Any investigation conducted by the Inspector-General is for the purposes of intelligence oversight which must result in a report containing findings and recommendations;

2.3 The mandate of the IGI does not extend to criminal investigations which are court driven and neither can IGI assist the police in conducting criminal investigations. The mandate of criminal investigations rests solely with the Police;

As such we are of the opinion the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that this matter be referred back to the NPA for the institution of the criminal charges.’

[67] Without any further investigation or engagement, Mr Mrwebi responded in writing to General Dramat of the SAPS on 30 March 2012 ‘that my decision to instruct the withdrawal of the charges still stands and that the matter is closed’. His subsequent explanation of this conduct, namely that it had been agreed on 9 December 2011 that there was a serious defect in the case and that nothing changed thereafter, has been shown to be false. The inference is irresistible that Mr Mrwebi had throughout used his senior position in the prosecutorial service to advantage Mr Mdluli and to ensure that he not be prosecuted.

[68] As already set out, Mr Mrwebi lied about the events of both 5 and 9 December 2011 and abused his position. Not only has Mr Mrwebi shown himself to be seriously lacking in integrity, but has failed in these proceedings to have taken the court into his confidence and fully explained his actions. All of this hallmarks him as a person unfit to practice as an advocate, particularly in the light of the authorities already referred to when dealing with Mr Jiba. I have no hesitation in endorsing the order of the court a quo that Mr Mrwebi should be struck from the roll of advocates.

Cross appeal

[69] The GCB cross appeals against the following order of the court a quo:

‘The case against Mzinyathi (third respondent) is hereby dismissed with costs, such costs to include the costs of two counsel up to the stage when the applicant (GCB) indicated that it will not persist against the third respondent.’

The GCB submits that no order should have been made in respect of the costs of Mr Mzinyathi.

[70] In the FUL matter, Murphy J made findings in respect of the credibility of Mr Mzinyathi that required serious consideration of whether he was a fit and proper person to continue to practice as an advocate. Murphy J inter alia said:

‘Taking account of how it was placed before the court by Mzinyathi, after FUL’s heads of argument were filed, without explanation for its lateness, and its inconsistency with his testimony at the disciplinary hearing, that he was presented with a fait accompli and was unable to influence the decision because Mrwebi claimed to be functus officio, this evidence of the DPP of North Gauteng, to the effect that he ultimately concurred, must regrettably be rejected as un-creditworthy. The affidavit is a belated, transparent and unconvincing attempt to re-write the script to avoid the charge of unlawfulness.’

These findings formed the heart of the complaint against Mr Mzinyathi in the present application.

[71] In his answering affidavit in the present application, Mr Mzinyathi explained the circumstances of his involvement and the context of his affidavit in the FUL matter. In the result, the GCB did not engage with the answering affidavit in its replying affidavit and at the hearing in the court a quo declared that it left the matter of Mr Mzinyathi in the hands of the court.

[72] The GCB is the custos morum of the profession of advocates, in the public interest, in much the same manner that the Law Societies act as the guardians of the attorneys’ profession. As such it brings matters of alleged misconduct of advocates to the attention of the court. The nature of an application by the GCB to strike an advocate from the roll of advocates is a disciplinary enquiry conducted by the court.

In these sui generis proceedings the GCB is therefore not in the position of an ordinary litigant. See Society of Advocates of South Africa (Wits Division) v Edeling 1998 (2) SA 852 (W) at 859G-I. For these reasons our courts have over many decades recognised the principle that unless the GCB had acted irresponsibly in bringing a disciplinary matter to the attention of the court, the GCB should not be mulcted in costs, even if the court decides that the practitioner should not be struck from the roll or suspended. See the remarks of Tindall J in Incorporated Law Society v Taute 1931 TPD 12 at 17, approved by this court in Botha v Law Society, Northern Provinces [2008] ZASCA 106; 2009 (1) SA 227 (SCA) para 22.

[73] It was with explicit recognition of this principle that counsel for Ms Jiba submitted that no order as to costs should be made in the event of her appeal being successful. The court a quo was not alive to this principle and therefore misdirected itself. The GCB cannot be faulted for bringing the findings of Murphy J to the attention of the court. It was its duty to do so.

Even though the answering affidavit of Mr Mzinyathi in the present application appeared to contain an acceptable explanation of the criticisms of Murphy J, it was not for the GCB to assume the function of the court and determine that the proceedings in respect of Mr Mzinyathi should terminate. Its decision to leave the matter in the hands of the court, was principled and responsible. In my judgment the GCB should therefore not have been ordered to pay Mr Mzinyathi’s costs.

[74] I would therefore make the following order:

1 The appeal of the first appellant (Ms Jiba) and the second appellant (Mr Mrwebi) are dismissed, and they are in each instance to pay the costs of the respective appeal, such costs to include the costs of two counsel.
2 The cross appeal of the GCB in the case of the third respondent a quo, Mr Mzinyathi, is upheld with costs of two counsel, and para 1 of the order of the court a quo is altered to read as follows:
‘The case against Mzinyathi (third respondent) is dismissed with no order as to costs.’