The General Council of the Bar (GCB) of South Africa says it was not being racially selective by applying for leave to appeal against the Supreme Court of Appeal (SCA) ruling in favour of the NPA’s Nomgcobo Jiba and Lawrence Mrwebi.
Their statement follows comments made by the Advocates for Transformation (AFT), which said it was “concerned about the intolerable inconsistency” of the Bar over the past 10 years.
AFT claimed that the race and political affiliation of the two may have been factors that contributed to the Bar’s decision to take the matter further to the Constitutional Court, whether “consciously or unconsciously”.
Last week, the SCA overturned a ruling of the Pretoria high court that Jiba and Mrwebi be struck from the roll of advocates.
The SCA judgment was split among five judges — three ruled in favour of Jiba and Mrwebi and the others disagreed and gave a dissenting judgment.
However, speaking to News24 on Wednesday, chairperson of the GCB advocate Craig Watt-Pringle SC said there was no basis to suggest that the Bar was being racially selective.
“[It is] very difficult to suggest otherwise, because two Pretoria high court judges found that both Jiba and Mrwebi ought to be struck off and two SCA judges agreed,” he said.
The decision to appeal was taken during the GBC’s annual general meeting on July 14 in Durban.
The GCB said earlier in a statement that the decision to launch the appeal was “extensively debated”.
The matter was put to the vote and 18 members of council voted in favour of applying for leave to appeal, 12 members voted against, and two members abstained.
In a statement released on Tuesday, chairperson of AFT advocate Anthea Platt SC made reference to a 2013 matter where seven members of the Pretoria Bar, including two senior counsel, were found guilty by their society of multiple counts of double-briefing and over-reaching against the Road Accident Fund, where millions were lost to the State as a result.
‘GCB is still reeling from that decision’
Platt was referring to the matter between GCB v Brenton Geach and others.
The North Gauteng High Court refused to strike them off the roll, but instead imposed sanctions of suspension.
“On appeal by the GCB, the majority of the SCA, to the chagrin of the minority judgment in that case, refused to strike off these members of the Pretoria Bar. To this day, the GCB is still reeling from that decision,” she said.
Platt said the GCB decided not to take the matter on appeal to the Constitutional Court.
She claimed that the Johannesburg and Pretoria societies of advocates, “both of which comprise overwhelmingly of white members, have treated matters involving serious infractions by senior white males with astonishing leniency”.
“Some of these matters cry out for striking off applications. AFT knows about these matters [and] yet the GCB has not intervened in the exercise of its custos morum role.
“Such selective persecution of advocates, ostensibly in the exercise of its custos morum role, is patently egregious and AFT refuses to be part of it.”
The custos morum role can be loosely translated from Latin to mean the standard bearer of the ethics of the profession.
Platt added that the group distanced itself from the decision of the GCB and would now consider what further steps, if any, to pursue in the “vindication of its principled stance”.
‘Good reason to grant leave to appeal’
However, Watt-Pringle said, if there was a significant difference of judicial opinion, an appeal was warranted.
“The division of opinion also suggests at least reasonable prospects of success. Secondly, the public importance of the matter is a good reason to grant leave to appeal,” Watt-Pringle said.
“These are advocates near to the apex of the NPA, which as a matter of public record is suffering from a crisis of confidence. Its credibility is not enhanced when four senior judges think that the State counsel in question misled the court and are not fit and proper persons to be on the roll of advocates.
“Thirdly, important matters of principle emerge from the differences between the majority and minority judgments in the SCA. All of these reasons are simultaneously good reasons to apply for leave to appeal. I would say that we have no choice,” he said.
He said AFT had “overlooked” several factors in the Geach matter.
“In Geach, the GCB appealed and some of the respondents (advocates) appealed as well. The GCB was by a majority judgment unsuccessful. The advocates who were struck off included black and white counsel.
“Geach, a white silk, was not struck off, but the minority in the SCA would have struck him off. He is now being used to illustrate racial bias, when compared with the Jiba matter.”
Meanwhile, Jiba is back at work and intends to fight back when the Bar applies for leave to appeal a ruling that paved the way for her return.
Jiba’s advocate Zola Majavu told News24 on Tuesday that his client had returned to work on Monday. He also confirmed their intention to oppose the GCB’s leave to appeal application.
Jiba and Mrwebi were struck from the roll of advocates on September 15 2016, after Judge Francis Legodi in the High Court agreed with the GCB that they were “not fit and proper” to be advocates.
The case went to the SCA in Bloemfontein and last week the appeal court ruled in favour of Jiba and Mrwebi.