ADVOCATE NOT FIT AND PROPER PERSON – REMOVED FROM ROLL OF ADVOCATES

GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA v JIBA AND OTHERS 2017 (1) SACR 47 (GP)

 

Legal practitioners — Advocate — Removal from roll — On ground that advocate not fit and proper person to remain on roll of advocates — Advocates in National Prosecuting Authority — Found to have failed to comply with rules of court in filing record in application for review of decision to discontinue prosecution and reasons given therefor unreasonable, unwarranted and in bad faith — Also found to have acted contrary to oath taken as advocates and having brought prosecuting authority into disrepute — Further findings made that evidence in disciplinary hearing of prosecutor was dishonestly given, as also statements in answering affidavits — Court finding that advocates in question not fit and proper persons to remain on roll of advocates — Ordered that their names be struck off roll of advocates — Admission of Advocates Act 74 of 1964, s 7(1)(d).

Legal practitioners — When fit and proper person for legal profession — Appropriate legal training may improve qualities required for profession — Qualities lawyers should possess are integrity, dignity of self and of court, possession of legal knowledge and technical skills, capacity for hard work, respect for legal order, and sense of equality and fairness.

Legal practitioners — Advocate — Removal from roll — On ground that advocate not fit and proper person to remain on roll of advocates — Test for consisting of three-stage enquiry — First, court to decide whether conduct complained of established on preponderance of probabilities — Secondly, court to consider whether in its discretion person concerned not fit and proper person to continue in practice — Thirdly, court to consider whether in circumstances person concerned should be removed from roll or whether suspension from practice would suffice — Last-mentioned decision one for discretion of court — In deciding what course to follow, court not imposing penalty, but acting in protection of public — Admission of Advocates Act 74 of 1964, s 7(1)(d).

Prosecution — National Director of Public Prosecutions and Deputy — Removal or suspension — Distinct difference between removal or suspension of such officers under s 12 of National Prosecuting Authority Act 32 of 1998 (NPA Act) and removal from roll of advocates under s 7 of Admission of Advocates Act 74 of 1964 — Removal or suspension under NPA Act not necessarily meaning that such person automatically removed from roll of advocates — For latter, process under s 7 of Admission of Advocates Act to be followed — But National Director or Deputy who is removed from roll of advocates cannot continue in that office because of provisions of s 9 of NPA Act — Processes under two Acts can, however, run parallel to each other — Any choice of two processes not rendering process unfair.

Prosecution — National Director of Public Prosecutions and Deputy — Power to institute criminal proceedings on behalf of state — Also has power to carry out functions incidental to institution of criminal proceedings —Exercise of such power to be done in accordance with rule of law and Constitution — Failure to do so would be in conflict with Constitution and national legislation (National Prosecuting Authority Act 32 of 1998) — Failure to prosecute in face of prima facie evidence would offend against law and Constitution — Constitution, 1996, s 179(1) and (2).

 

A successful legal practitioner (attorney or advocate) should possess and display certain qualities, most of which cannot be acquired through learning. Having these qualities could indicate that a person is indeed a ‘fit and proper’ person for the profession. An appropriate academic training may, however, play a vital part in improving them, as they are ‘by nature at least latent’. The following are listed as the least of the qualities a lawyer should possess: integrity — meaning impeccable honesty or an antipathy to doing anything dishonest or irregular for the sake of personal gain; dignity — practitioners should conduct themselves in a dignified manner and should also maintain the dignity of the court; the possession of knowledge and technical skills; a capacity for hard work; respect for legal order; and a sense of equality or fairness. (Paragraphs [2] – [3] at 53g – 54b.)

Section 7(1)(d) of the Admission of Advocates Act 74 of 1964 authorises a court to remove an advocate from the roll of advocates if satisfied that he or she is not a ‘fit and proper’ person to continue to practise as such. The test is a three-stage inquiry. First, the court must decide if the alleged conduct complained of has been established on a preponderance of probabilities — this is a factual inquiry. Secondly, it must consider if the person concerned is, in its discretion, 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 a fit and proper person to practise, and is a value-judgment consideration. Thirdly, the court must inquire whether, in all of the circumstances, the person in question is to be removed from the roll or whether an order of suspension from practice would suffice. This is also a matter for the discretion of the court. In deciding on what course to follow, the court is not first and foremost imposing a penalty. Rather, the main consideration is the protection of the public. (Paragraph [9] at 55g – 56a.)

Section 12 of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) deals with the term of office of National Director and Deputy National Director of Public Prosecutions, and ss (5), (6) and (7) deal with the removal or suspension of these persons. There is a distinct difference between the removal or suspension of these persons under s 12 and removal from the roll of advocates or suspension from practice under s 7 of the Admission of Advocates Act. In terms of the NPA Act, the National Director or Deputy National Director may be removed or suspended as such, but this would not necessarily mean that such a person is automatically removed from the roll of advocates. For any such removal one has to follow the process envisaged in s 7 of the Admission of Advocates Act. However, the National Director or Deputy National Director who is removed from the roll of advocates cannot continue to be National Director or Deputy National Director of Public Prosecutions because of the provisions of s 9 of the NPA Act, which require that any person appointed as National Director, Deputy National Director must — ‘(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and (b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibility of the office concerned’.

So, if a person ceases to be a fit and proper person under s 7 of the Admission of Advocates Act, and is removed from the roll of advocates, he or she cannot be entitled to practise in all courts in the Republic as contemplated in para (a) of s 9(1) of the NPA Act. These processes can sometimes run parallel to each other, but any choice of the two would not render the process unfair. (Paragraphs [20] – [23] at 59h/i – 61g.)

There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, namely the NPA Act. The prosecuting authority has the power inter alia to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to instituting criminal proceedings (s 179(1) and (2) of the Constitution). Anyone within the prosecuting authority who exercises this power must do so in accordance with the rule of law and the Constitution. Anything short of this would be in conflict with the Constitution and the national legislation. Failure to prosecute any case in the face of prima facie evidence would offend against the law and the Constitution (being the supreme law of the Republic of South Africa).

The applicant applied in a High Court in terms of s 7(1)(d) and (2) of the Admission of Advocates Act for an order removing the names of the three respondents from the roll of advocates on the ground that they were not ‘fit and proper’ persons to continue to practise as advocates. Various complaints were made against the respondents arising out of their conduct in the handling of three cases, and adverse remarks by judges in both the High Courts and the Supreme Court of Appeal. These cases were known as the ‘Booysen case’; the ‘spy-tapes case’ — a case arising out of the termination by a former head of the National Prosecuting Authority of the prosecution of Mr J Zuma (who subsequently became the President of the Republic of South Africa) on a number of charges; and the ‘Mdluli case’, in which an applicant had applied for the review of a decision to withdraw fraud and corruption charges against Mdluli. The applicant, in its case against the first respondent, relied on the Booysen case, the spy-tapes case and the Mdluli case. The court found, however, after considering the affidavits of the applicant and the answering affidavits of the first respondent (which were not before the court in the Booysen and the spy-tapes case), that no case had been made out on the facts for her removal. The applicant, however, also raised a number of complaints arising out of the Mdluli case against all three respondents.

First respondent Jiba

On these complaints the court found that the first respondent had failed to comply timeously with the provisions of rule 53 of the Uniform Rules of Court regarding the filing of the record relating to the decision to withdraw the charges against Mdluli, and that the reasons given for the delay were of the first and second respondents’ own making, and were in the circumstances completely unreasonable, unwarranted and signified bad faith on their part. (Paragraph [114.2.7] at 95b – d.) The court held further that an incomplete or inadequate record had been supplied and that the reasons given therefor by the first respondent had no merit from the start. She had acted contrary to the oath she took when she was admitted as an advocate and in a way flouted the rules of the high office she held in the prosecuting authority at all material times.

A further complaint against the first respondent was that she had failed to comply with a directive by the Deputy Judge President to file an answering affidavit by a certain date. The court found that she had indeed failed to comply with the directive and that she had attempted ‘to wash her hands’ of responsibility for the failure, and did not seem concerned at the snail’s pace at which the review proceedings were conducted. The court found that this conduct was wanting and, cumulatively considered with other complaints relating to her handling of the Mdluli case, should justify a removal from the roll of advocates. It was found further, in respect of a further complaint, that the first respondent had not heeded the advice of counsel briefed to defend her in her capacity as Acting National Director of Public Prosecutions, in relation to the affidavits to be served and filed in response to the review application, and that she had filed affidavits contrary to said advice. The court held that this was very serious and unprecedented, and the kind of conduct that made her cease to be a fit and proper person to remain on the roll of advocates.

A new team of counsel was then briefed to take over the defence of the review proceedings. This team advised that the flaws in the prosecution of the matter, for the first respondent and others, were —

‘fundamental — so much so that we are under no doubt that as matters now currently stand our clients are headed towards a certain judgment against them, with every potential of irreparable harm to the credibility and reputation of the National Prosecution Authority. . . . As the papers correctly stand there is simply no defence.’

Counsel further advised that, should opposition continue on the basis of attempting to justify the decision to discontinue the prosecutions of Mdluli, ‘our client will regrettably have to find yet another team of counsel’. The first and second respondents insisted on continuing with the defence. The review application was eventually granted and in its judgment the court made a number of adverse remarks against the first respondent. The court held that the first respondent had steadfastly done everything in her power to ensure that the charges against Mdluli were permanently withdrawn, despite the prima facie evidence against him. Further, that in so doing she acted mala fide and thus offended against the rule of law and the Constitution, and had to be found no longer fit and proper to remain on the roll of advocates.

A further complaint against the first respondent was that she had failed to disclose to the court in the review application that a prosecutor in the Mdluli case had sent a memorandum to her, requesting her to review the decision to discontinue the prosecution of Mdluli. In opposing the review application the first respondent deposed that the ‘matter (had) not been brought to my office for consideration in terms of regulatory framework’. The court found that this was a deliberate attempt to mislead the court and that her motivation in adopting this attitude had to be found in her willingness to protect Mdluli by all means. It held that, in doing so, she offended against s 179 of the Constitution and the rule of law, and that this was of direct relevance to the question whether she should remain on the roll of advocates.

The court accordingly concluded that the first respondent had ceased to be a fit and proper person to remain on the roll of advocates

Second respondent Mrwebi

Various complaints relating to the conduct of the second respondent (a Special Director of Public Prosecutions), in connection with his decision to discontinue the prosecution of Mdluli, and the application for the review of that decision, were raised in the applicant’s founding affidavit.

The first complaint was that he had lied about the nature of a so-called ‘consultative document’ he had prepared concerning the decision to Idiscontinue the Mdluli prosecution. The court found that the second respondent had indeed lied about the document. (Paragraphs [141] – [141.4] at 116a – 120g.)

It was also found that he had failed to disclose a memorandum and consultative note setting out the reasons for the decision to discontinue the prosecution, as part of the record of the decision under review. The court found further that the failure was deliberate.

It was further found that the second respondent had not acted in accordance with an understanding he had with the third respondent (the Director of Public Prosecutions in charge of the Mdluli prosecution), and that the second respondent wanted to research the effect of certain legislation which was relevant to the decision whether or not to discontinue the prosecution. The decision to discontinue the prosecution was taken by the second respondent contrary to the understanding with the third respondent. The court held that this amounted to a betrayal and consultation in bad faith by an officer of the court, and justified a removal from the roll of advocates.

Furthermore, the court held that the second respondent had given evidence in disciplinary proceedings against one of the prosecutors in the Mdluli case on the question whether or not the third respondent (as Director of Public Prosecutions in the North Gauteng High Court) had agreed with him that the prosecution should be discontinued. The court found that by doing so the second respondent had ‘turned himself into an unreliable and dishonest witness’ and that this had found ‘its way into the present proceedings’. The court found that his answer on this issue in the present proceedings was not only a lie but was intended to mislead the court. There was no excuse for his lies and he should therefore be found to have ceased to be a fit and proper person to remain on the roll of advocates. He had betrayed his oath of office as an advocate and, in doing so, had also brought the prosecuting authority into disrepute. The court held further that the attempt by the second respondent, as the decision-maker in question, to distance himself from the first respondent’s defiance of the advice of counsel that the decision to discontinue the prosecution of Mdluli would ‘not stand in court’, smacked of him being untruthful and dishonest. That he and the first respondent had together ignored ‘solid and right advice’ given by counsel did not accord with a fit and proper requirement for remaining on the roll of advocates.

A further finding was that the second respondent’s refusal to reinstate the charges, after a particular difficulty that he thought existed had been cleared away, displayed that the second respondent was determined to flout the rule of law and the Constitution by discontinuing the prosecution against Mdluli in the face of prima facie evidence and in contravention of the provisions of s 24(3) of the NPA Act, that is, without concurring with the third respondent.

Finally, the court held that, in a supplementary affidavit in the review application in the Mdluli case, the second respondent alleged that he had taken the decision to withdraw the charges against Mdluli ‘in consultation’ with the third respondent, which evidence was ‘patently, dishonestly given’, and he had thereby made himself liable to a finding that he had ceased to be a fit and proper person to remain on the roll of advocates.

The court held accordingly that the second respondent had ceased to be a fit and proper person to remain on the roll of advocates.

Third respondent Mzinyathi

The court found further, in respect of the complaint against the third respondent, that his statement in the review application of the Mdluli case was found not to be creditworthy in that case; that, taking into consideration his explanation of its context, there was insufficient information against him to justify the relief sought.

The court accordingly granted an order striking the names of the first and second respondents from the roll of advocates, and dismissed the application against the third respondent.

 

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