SCA clears path back to NPA for Jiba, Mwrebi

The Supreme Court of Appeal (SCA) today returned Nomgcobo Jiba and Lawrence Mwrebi to the welcoming bosom of the National Prosecuting Authority (NPA) in a shock judgement which resulted in only three of the five judges agreeing it was for the best.

It may also provide grounds for appeal which could only be heard in the Constitutional court, Wits associate law professor James Grant said.

“The effect on the man in the street is going to be profound,” Grant said.

“This decision may be more important than the dagga decision insofar as it impacts on the justice system, it’s certainly very important, there can be no overstating that.”

The impact would be felt in terms of the functionality and the trustworthiness of the NPA, Grant felt.

“Even once they were gone and it was still under NPA head Shaun Abrahams, its integrity was in tatters in terms of public sentiment. Now you’ve got their return, I don’t think the integrity of the NPA can absorb this,” Grant said.

That was the effect of the judgement handed down by the Supreme Court of Appeals in Bloemfontein yesterday, in which three judges – acting deputy judge president Zwelibanzi Shongwe (with judges Legoabe Seriti and Baratang Mocumie concurring) – dismissed Jiba and Mrwebi’s striking off the roll with no order as to costs.

GCB chairperson advocate Vuyani Ngalwana said late yesterday afternoon he was still reading the judgement.

“The GCB executive committee which comprises 10 people will then have to discuss it and then prepare a statement, hopefully by noon tomorrow,” Ngalwana said.

It is understood Jiba and Mrwebi would be welcomed back to the NPA to carry on working.

Shongwe found “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,” Shongwe said.

“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.”

He found the above reasons were enough to suspend Mrwebi, but not enough to strike him from the roll as he had not personally benefited from his misconduct, nor did he prejudice any client.

The dissenting judgment by Judge Christiaan van der Merwe (with Judge Eric Leach concurring) held that the appeals of Jiba and Mrwebi should fail and the cross appeal of the GCB should succeed.

“When I got to the second (minority) judgment I checked that I was reading judgments from the same case,” said Grant.

“It’s as if the judges were presented with different cases. The judgments are not easy to follow at all and often what is a ‘logical’ step in each of the judgements is clearly normative, I wish I could say I knew which judgement is clearly right or wrong.”

Grant noted the majority judgement “felt” wrong and and in once instance appeared to make an error on the standard of proof – but it wasn’t not enough to explain the vastly different approaches taken.

Jiba and Mrwebi were placed on special leave in 2016, and last year the Pretoria High Court set aside a decision by NPA head Shaun Abrahams to withdraw fraud and perjury charges against Jiba.

Van der Merwe found Jiba had given “untruthful evidence under oath and thus displayed dishonesty and a lack of integrity” while Mrwebi was “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 Jiba”.

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