PER EMAIL
To:
Chairperson: Adv Tanya Golden SC
Cape Bar Council
Huguenot Chambers,
40 Queen Victoria Street,
CAPE TOWN, 8001
CC: The
Chairperson: Advocate. V. Ngalwana SC
General Council of the Bar of South Africa (GCB)
PO Box 786878,
SANDTON, 2146
Email: vngalwana@vodamail.co.za
CC: Advocate
Idris Jeremy Muller SC
Huguenot Chambers
40 Queen Victoria Street
CAPE TOWN, 8001
Email:1204advs@law.co.za
ATTENTION: ADV TANYA GOLDEN
Dear Madam
Re: Institutional Racism and Professional Misconduct Complaint against
Advocate Idris Jeremy Muller SC for Racism and Conduct in General Council of
the Bar of South Africa v Jiba and Others.
1.
We are writing to lodge a professional
misconduct and ethics complaint against Advocate Idris Jeremy Muller SC for his
actions in the case of General Council
of the Bar of South Africa v Jiba and Others (23576/2015) [2016] ZAGPPHC
833 (15 September 2016) as detailed herein. It is our understanding that he engaged in these acts in his
personal capacity and in his capacity as then Chairperson of the General
Council of the Bar. To the extent
Advocate Muller believes or contends that these acts detailed herein were
committed by or are attributable to another official of the GCB or another
advocate, he must be kindly requested to identify that person and state with
specificity the nature, date and circumstances of the alleged acts or
omissions. If he fails to comply with this request we shall assume that all of
the acts and omissions detailed herein were committed solely by Advocate
Muller. Further we request an
expedited investigation and application to have his name struck off the roll of
advocates.
2.
In addition, we lodge this complaint of
systematic institutional racism against the GCB in that the acts complained of
were condoned and consented in by the GCB and reflect its tolerance of racism
against black Africans.
3.
Further, we request that the investigation
and resolution of the Complaint be expedited given the following exceptional
circumstances. A major aspect of
the proposed Complaint is that Adv. Muller, individually and on behalf of the
GCB has engaged in provable acts of racism and disparate treatment of black
advocates, to wit Advocate Jiba and Advocate Mrwebi. Further, it will be
alleged and proven that he deliberately ignored applicable rulings from other
courts including the SCA that were contrary to the position he took in the
matter of General Council of the Bar of
South Africa v Jiba and Others (23576/2015); that Adv. Muller intentionally
misled and lied to Judges Legodi and Hughes about pertinent substantive issues
in the said matter; that he perverted the course of justice by misleading the
court about whether or not a suspension as opposed to a striking off was the
appropriate remedy for the alleged misconduct. We shall also place reliance
upon the decision in the matter of General
Council of the Bar of South Africa v Geach and others 2013 (2) SA 52 (SCA)
which involved relatively large amounts pilfered in relation to the fraud
convictions and suspension orders. White advocates overreached in the Geach case, and the Supreme Court of
Appeal did not find the suspension of certain of the counsel unreasonable, and
so did not interfere with the order of the Court a quo on appeal. The only reason why, a similar sanction
of suspension from practice was not even considered appropriate in the cases of
Advocates Jiba and Mrwebi was because of the highly prejudicial and disparate
treatment meted out to these advocates.
4.
Given the racism within the legal profession which has now
infected the judicial system and the intrinsic seriousness and social
implications of allegations of racism in South African society in general, it
is imperative that allegations of racism by officials of the GCB be
investigated and resolved expeditiously.
As Justices Froneman and Cameron opined in City of Tshwane Metropolitan Municipality v Afriforum and Another
(157/15) [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21 July
2016) at para. 79, the“wounds of
colonialism, racism and apartheid run deep… And insensitivity to the continuing wounds by many of us who
were not subject to these indignities can only exacerbate the fraughtness.” As the Concourt recently stated in South African Revenue Service v Commission
for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38,
there is “…a compelling case for all of
us to begin to engage in an earnest and ongoing dialogue in pursuit of
strategies for a lasting solution to the bane of our peaceful co-existence that
racism has continued to be. The duty to eradicate racism and its tendencies has
become all the more apparent, essential and urgent now. For this reason,
nothing that threatens to take us back to our racist past should be glossed
over, accommodated or excused. An outrage to racism should not be
condescendingly branded as irrational or emotional.” Id.at para. 7. Another
factor militating strongly in favour of expedited investigation is that the
acts complained of, severely and demonstrably undermine both prosecutorial and
judicial independence which the GCB and its members have a Constitutional
obligation to protect and uphold.
5.
The substantive allegations that form part
of the extant complaint include but are not limited to the following:
5.1.
Advocate Idris Jeremy Muller’s racist and disparate treatment of
Advocates Jiba and Mrwebi in The Affidavit Deposed on Behalf of the GCB and
court submissions:
5.1.1.
A perscrutation of Advocate Idris Jeremy Muller SC’s Affidavit filed in General Council of the Bar of South Africa
v Jiba and Others (23576/2015) [2016] ZAGPPHC 833 (15 September 2016)
reveals startling evidence of racism and consistency in terms of blatant
disparate treatment of Advocates Jiba and Mrwebi. He has consistently referred to them throughout his
Affidavit simply and contemptuously as “Jiba” and ‘Mrwebi’ respectively without
using title of “Advocate”, “Ms” or “Mr” while he unfailingly referred to all
white persons ranging from advocates, judges, ordinary police officials by
their honorific titles such as of “Advocate”, “Ms” or “Mr.” Does that matter or is that of legal
significance? The answer is resoundingly in the affirmative!
5.1.2.
Advocate Idris Jeremy Muller SC’s approach
is not an accident – it is well-calculated and a perpetuation of colonialism,
racism and apartheid which was premised on denial of equality and inherent
racial inferiority of black Africans.
Denial of respect and refusal to accord Africans honorific titles
especially in the courts was, and continues to be, a prominent hallmark of this
culture of disrespect, humiliation and denial of dignity. His actions are not simple
insensitivity to the continuing wounds by many of the African victims who were
subject to these indignities of apartheid – they are unequivocal denial of
equal treatment and dignity within the hallowed walls of justice.
5.1.3.
These matters concerning fundamental
equality rights of blacks of African descent have been dealt with in other
mature democracies more than 50 years ago. In Hamilton v. Alabama," 376 U.S. 650 (1964), rev'g per curiam 275 Ala. 574, 156 So.2d
926 (1963) the U.S Supreme Court set a minimal standard of courtesy for black
litigants by overturning a contempt citation issued when a black woman refused
to testify because the judge insisted on calling her by her first name. Mary
Hamilton (October 13, 1935—November 11, 2002) was a field secretary for the
Congress of Racial Equality in Alabama. In 1963, along with hundreds of others,
she was arrested during civil rights protests in Gadsden. At a habeas corpus hearing on June 25
challenging the legitimacy of those arrests, she refused to answer questions on
the witness stand until she was addressed with the same courtesy accorded white
witnesses. At that time, in the South and in many other parts of the nation, it
was customary for judges and prosecutors to address white witnesses by last
name and courtesy titles such as "Mr. Jones" or "Mrs.
Smith", while addressing all nonwhite witnesses by the first name without
honorific. When the county prosecutor addressed Hamilton by her first name
only, she said she would not answer any questions unless she were addressed as
"Miss Hamilton". When she persisted in her demand to be addressed in
this manner, the judge held her in contempt of court and sentenced her to five
days in jail and a $50 fine.
5.1.4.
The U.S. Supreme Court held that an
African-American woman was indeed entitled to the same courteous forms of
address customarily reserved solely to whites in the Southern United States,
and that calling a black person by his or her first name in a formal context
was "a form of racial
discrimination". In
support of its summary decision, the Court cited its 1963 ruling in Johnson v. Virginia, in which it had
unanimously held that "a State may not require racial segregation
in a courtroom". Johnson v.
Virginia, 373 U.S. 61 (1963).
This means that in court, attorneys should properly refer to the parties
and witnesses in a manner that does not promote racial segregation or
discrimination. Advocate Idris Jeremy
Muller SC intentionally committed acts of racism in broad daylight.
5.1.5.
Lawyers trained and nurtured during the
apartheid era not only deliberately ignore that formality and decorum and
politeness (not to mention civility), which are expected in court and necessary
to earn the proper respect court proceedings require, but they are oblivious to
the fact that that proper address of litigants (blacks and whites) are equal
protection and matters of basic civil rights. It will be our contention that actions by Adv Muller
constituted misconduct which was both improper and prejudicial. Judges Legodi and Hughes unwittingly
adopted that racist approach and never
once used the word advocate or “Ms” for Advocate Jiba or “Mr” or “advocate”
for Advocate Mrwebi throughout their entire judgment. This not only demonstrate bias and prejudice but it also
shows there is a substantial likelihood Adv. Muller’s misconduct affected the
court's verdict.
5.1.6.
Even more egregious, at the time of
deposing to the Affidavit Adv. Muller was aware of the SCA ruling in National Director of Public Prosecutions
and Others v Freedom Under Law (67/2014) [2014] ZASCA 58; 2014 (4) SA 298
(SCA); 2014 (2) SACR 107 (SCA); [2014] 4 All SA 147 (SCA) (17 April 2014)
http://www.saflii.org/za/cases/ZASCA/2014/58.html. There, Brand JA (Mthiyane DP, Navsa, Ponnan et Maya JJA concurring)
definitively ruled:
[18] … What I do find somewhat
perturbing is the court’s high praise for Dr Mamphela Ramphele and Justice
Johan Kriegler who deposed to FUL’s founding and replying affidavits
respectively (see para 4). It needs to be emphasised that all litigants,
irrespective of their status, should be treated equally by our courts. Judges
must therefore be wary of creating the impression – which would undoubtedly be
unfounded in this case – that they have more respect for some litigants or
their representatives than for others.
5.1.7.
As a chairperson of the GCB and an officer
of the court in disciplinary proceedings Adv. Muller was supposedly
representing the public and acting in the public interest, and presumed to act
impartially in the interest only of justice. Despicably, he elected to lay
aside the impartiality that should characterize his official action to become a
heated partisan, and by vituperation of the accused advocates, and appealed to
prejudice. He sought to procure a conviction at all hazards, he ceased to
properly represent the public interest, which demands no victim, and asks no
conviction through the aid of passion, sympathy or resentment. Without expressly saying so he resorted
to racist argument and appeals to racial stereotypes or racial bias to achieve
convictions. "[T]heories and arguments based upon racial, ethnic and most
other stereotypes are antithetical to and impermissible in a fair and impartial
trial." State v. Dhaliwal, 150
Wn.2d 559, 583, 79 P.3d 432 (2003) (Chambers, J., concurring).
5.1.8.
It is irrelevant that Adv. Muller’s method
was not an isolated appeal to racism. Not all appeals to racial prejudice are
blatant. Perhaps more effective but just as insidious are subtle references.
Like wolves in sheep's clothing, a careful word here and there can trigger
racial bias. See also A. Leon
Higginbotham, Jr., Racism in American andSouth African Courts: Similarities and
Differences, 65 N.Y.U. L. REV. 479, 545-51 (1990).
Among other things, he deliberately refused to associate Advocates Jiba’s name
with the honorific “Ms” or “Advocate” although he never mentioned a white
witness/person’s name without these honorifics. We will contend and prove that
the only reason to blatantly disrespect them in this manner was to, subtly and
likely deliberately, call to the judge’s attention that the accused advocates
were black Africans and to emphasize the GCB’s contention that these blacks
were undeserving of the honorific titles recognized even for ordinary white
policemen. This conduct was highly prejudicial and improper.
5.1.9.
The notion that the GCB's representative
in a disciplinary trial should seek to achieve a conviction by resorting to
racist arguments is so fundamentally opposed to our Constitution’s founding
principles, values, and fabric of our justice system that it should not need to
be explained. The Bill of Rights sought to guarantee certain fundamental
rights, including the rights to dignity, equality, fair and impartial trial.
Because disparate treatment of black advocates who are also officers of the
court and appeals by a GCB “prosecutor” to racial bias necessarily seek to
single out one racial group for different treatment, it fundamentally
undermines human dignity, the principle of equal justice and is so repugnant to
the concept of an impartial trial.
5.1.10.
In this case, we can say beyond a reasonable doubt that the
racist treatment of both Advocates Jiba and Mrwebi did contribute to the biased
judgment and perverse verdicts against them, as amply demonstrated by Judges Legodi
and Hughes’ acquiescence referred to in paragraph 5.1.5 above. Adv. Muller’s
bias and misconduct tainted nearly every major legal and fact issue in the
case. Accordingly, we expect the
GCB to properly apologize to both Advocates Jiba and Mrwebi and to remorsefully
approach the Court with an appropriate motion under Rule 42 of the Uniform
Rules.
There are many cases where racism, injected into a trial in various
ways, has required reversal. E.g., Hamilton
v. Alabama, 376 U.S. 650, 84 S. Ct. 982, 11 L. Ed. 2d 979 (1964) (summary,
per curiam decision reversing a judgment of contempt where it was based on
discrimination by the prosecutor in addressing an African American witness only
by her first name); Johnson v. Virginia,
373 U.S. 61, 62, 83 S. Ct. 1053, 10 L. Ed. 2d 195 (1963) (arrest and conviction
based on refusal of African American to comply with segregated seating arrangements
imposed in the courtroom; the Court reversed on the ground that "State-compelled
segregation in a court of justice is a manifest violation of the State's duty
to deny no one the equal protection of its laws"). Such cases
involve the "point where the due process and equal protection clauses
overlap or at least meet." United
States ex rel. Haynes v. McKendrick, 481 F.2d 152, 159 (2d Cir. 1973).
Injection of such discrimination is "antithetical to the purposes of the
fourteenth amendment, whether in a procedure underlying, the atmosphere
surrounding, or the actual conduct of, or a trial." Id. In United States v.
Cabrera, 222 F.3d 590 (9th Cir. 2000), the court determined that the
evidence was sufficient to convict the defendants and noted that the defendants
had not objected to a police detective's references on the witness stand to
their Cuban origin and negative generalizations about the Cuban community
(improper statements about the police "working Cubans," the way
Cubans package drugs in wafers, and resident aliens posing a flight risk). The
court nevertheless concluded the improper references to Cubans constituted
reversible error, stating that "[t]he
fairness and integrity of criminal trials are at stake if we allow police
officers to make generalizations about racial and ethnic groups in order to
obtain convictions. People cannot be tried on the basis of their ethnic
backgrounds or national origin." Id. at 597. The court did not engage
in a harmless error analysis.
Other courts have also noted the serious nature of injecting racial
considerations into a case. "To
raise the issue of race is to draw the jury's attention to a characteristic
that the Constitution generally commands us to ignore. Even a reference that is
not derogatory may carry impermissible connotations, or may trigger prejudiced
responses in the listeners that the speaker might neither have predicted nor
intended." McFarland v. Smith,
611 F.2d 414, 417 (2d Cir. 1979).
"In cases where race should
be irrelevant, racial considerations, in particular, can affect a juror's
impartiality and must be removed from courtroom proceedings to the fullest
extent possible." State v.
Varner, 643 N.W.2d 298, 304 (Minn. 2002).
5.1.11.
Moreover, as a matter of principle, the
way in which allegations of racism in South Africa are dealt with demands care.
Undoubtedly, vestiges of racism, overt or covert, vulgar or subtle, wherever
they continue to exist are deservedly to be exposed for the purpose of
eradication. The GCB and the organized legal professions are expected to take a
leadership role in combating racism in our judicial system, and not gloss over
them to protect their own. Significantly,
our Courts have expressed strong views against racism in different areas including
the workplace. See, South African
Revenue Service v Commission for Conciliation, Mediation and Arbitration and
Others [2016] ZACC 38.
In Crown Chickens (Pty) Ltd t/a Rocklands
Poultry v Kapp and Others,[2002] 6 BLLR 493 (LAC). Zondo JP stated the following:
‘Within the context of labour and
employment disputes this Court and the Labour
Court will deal with acts of racism very firmly. This will show not only this
Court’s and the Labour Court’s absolute rejection of racism but it will also
show our revulsion at acts of racism in general and acts of racism in the
workplace particularly. This
approach will also contribute to the fight for the elimination of racism in
general and racism in the
workplace in particular and will help to promote the constitutional
values which form the foundation of our society.’ At para 38.
5.1.12.
What makes Adv. Muller’s conduct
particularly egregious is the fact that at the time he deposed to an affidavit
he was fully informed of and selectively relied on the SCA judgment in National Director of Public Prosecutions
and Others v Freedom Under Law (67/2014) [2014] ZASCA 58; 2014 (4) SA 298
(SCA); 2014 (2) SACR 107 (SCA); [2014] 4 All SA 147 (SCA) (17 April 2014) cited
above.
5.1.13.
If Judges are obligated to accord dignity
and equality to respect to all litigants why would an advocate/an officer of
the court, acting on behalf of the GCB for that matter, be exempted from the
requirement that “all litigants, irrespective of their status, should be treated
equally?” In South African Revenue Service v Commission
for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38; (08
November 2016) the Concourt dealt with a case which “owes its genesis to the use of the term kaffir in a workplace and a
more assertive insinuation that African people are inherently foolish and
incapable of providing any leadership worthy of submitting to.” It bears testimony to the fact that “there are many bridges yet to be crossed in
our journey from crude and legalised racism to a new order where social
cohesion, equality and the effortless observance of the right to dignity is a
practical reality.” It observed:
[2] South
Africa’s special sect or brand of racism was so fantastically egregious that it
had to be declared a crime against humanity by no less a body than the United
Nations itself. And our country, inspired by our impressive democratic
credentials, ought to have recorded remarkable progress towards the realisation
of our shared constitutional vision of entrenching non-racialism. Revelations of
our shameful and atrocious past, made to the Truth and Reconciliation Commission, were so shocking as to induce
a strong sense of revulsion against racism in every sensible South African. But
to still have some white South Africans address their African compatriots as
monkeys, baboons or kaffirs and impugn their intellectual and leadership
capabilities as inherently inferior by reason only of skin colour, suggests the
opposite. And does in fact sound a very rude awakening call to all of us.
5.1.14.
As an advocate and officer of the Court,
Adv. Muller must be called to account for the manner in which his blatant
racism manifested itself in court documents on behalf of the GCB.
5.2.
Advocate Muller’s Selective and Racially Discriminatory Targeting of
Black African Advocates (Jiba, Mrwebi and Mzinyathi) for Misconduct Allegations
and Disciplinary Measures - Evidence that White Advocates and Others Committed
Comparable or More Serious Acts Without the GCB Taking Disciplinary Action.
5.2.1.
Adv. Muller’s accusations against Advocate
Jiba were summarized by Judges Legodi and Hughes as follows:
[108] Allegations against Jiba in Mdluli
case are in my view, correctly categorised in her answering affidavit to the
present proceedings as follows:
108.1 That she did not file a full and
complete rule 53 record notwithstanding an order compelling her to do
so.
108.2 That she did not file an answering
affidavit by the due date and had to be directed to do so by the Deputy Judge
President and in addition that she
did not file written heads of argument timeously;
108.3 That her reasons for the various delays were sparse and unconvincing;
108.4 That her conduct in particular is unbecoming
a person of such high rank in the public service.
108.5 That she did not disclose to the court
that on 13 April 2012, she had received a 24 page memoranda from Adv.
Breytenbach and that she deliberately attempted to mislead the court.
108.6 That she did not make a full and frank disclosure in order to refute,
explain or ameliorate serious allegations made against her.
108.7 That the SCA had also criticised her
conduct.
5.2.2.
Substantively, we are able to prove that
the GCB decision to target Advocates Jiba and Mrwebi was consistent with the
undeniable racial discrimination addressed above. Do we have clear material evidence to prove these serious allegations? Absolutely and please consider the
following issues:
5.2.2.1.
We have considered irrefutable evidence of
delays by white advocates and scrutinized judicial criticism of these
practitioners for delays similar to those alleged against Advocates Jiba and
Mrwebi. Court records are replete
with countless instances of harsh judicial criticism of whites and black
advocates for even worse delays. But we focused on delays in the Concourt where
litigation is totally dominated by white advocates and almost the exclusive
preserve of these white lawyers.
Most revealing was the statement of the Constitutional Court on “condonation”
which is found in Grootboom v National
Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA
68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC)
(21 October 2013). (Bosielo AJ
(Moseneke J, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J and
Skweyiya J concurring). There the
Concourt observed as follows:
5.2.2.2. [21] The failure by parties to comply with the rules of court or
directions is not of recent origin. Non-compliance
has bedeviled our courts at various levels for a long time. Even this Court has
not been spared the irritation and inconvenience flowing from a failure by
parties to abide by the Rules of this Court…
5.2.2.3. [33]. ..recently this
Court has been inundated with cases where there have been disregard for its
directions. In its efforts to arrest this unhealthy trend, the Court has issued
many warnings which have gone largely unheeded. This year, on 28 March
2013, this Court once again expressed its displeasure in eThekwini[1] as follows:
“The conduct of litigants in failing to
observe Rules of this Court is unfortunate and should be brought to a halt.
This term alone, in eight of the 13
matters set down for hearing, litigants failed to comply with the time limits
in the rules and directions issued by the Chief Justice. It is unacceptable
that this is the position in spite of the warning issued by this Court in the
past. In [Van Wyk], this Court
warned litigants to stop the trend. The Court said:
‘There is now a growing trend for
litigants in this court to disregard
time limits without seeking condonation. Last term alone, in eight out of ten matters, litigants
did not comply with the time limits or the directions setting out the time
limits. In some cases litigants
either did not apply for condonation at all or if they did, they put up flimsy
explanations. This non-compliance with the time limits or the rules of
Court resulted in one matter being postponed and the other being struck from
the roll. This is undesirable. This practice must be stopped in its tracks.’
The statistics referred to above
illustrate that the caution was not heeded. The Court cannot continue issuing
warnings that are disregarded by litigants. It must find a way of bringing this
unacceptable behaviour to a stop. One way that readily presents itself is for
the Court to require proper compliance with the rules and refuse condonation
where these requirements are not met. Compliance must be demanded even in
relation to rules regulating applications for condonation.”[2] (Footnotes
omitted.)
5.2.2.4. [34]. The
language used in both Van Wyk and eThekwini is unequivocal. The warning
is expressed in very stern terms. The picture depicted in the two judgments is
disconcerting. One gets the impression that we have reached a stage where litigants and lawyers disregard the Rules and
directions issued by the Court with
monotonous regularity. In many
instances very flimsy explanations are proffered. In others there is no explanation at all. The prejudice caused to the Court is self-evident. A message must be
sent to litigants that the Rules and the Court’s directions cannot be
disregarded with impunity.
5.2.3.
The above statements are revealing of the
discriminatory enforcement of the alleged ethical rules for advocates by the
GCB in several ways.
5.2.4.
First, it raises questions about a
systemic problem of non-compliance with Court rules by an overwhelming majority
of litigants and their lawyers.
What yardstick did Adv. Muller use to decide that Advocates Jiba and Mrwebi
should be targeted for a striking off application while white advocates in the
cases criticized by the Concourt were not similarly subjected to disciplinary
measures? We suggest racism was
the motivating factor.
5.2.5.
Second, the Concourt rulings in the above
cases makes it clear that “condonation” is not had for the mere asking - the
granting or refusal of condonation is a matter of judicial discretion. It
involves a value judgment by the court seized with a matter based on the facts
of that particular case. In the
advocate Jiba case, Judge Murphy granted condonation for all the alleged
offending conduct “in the interest of justice.” And yet Adv. Muller and the GCB chose to disregard a court
ruling in flagrant violation of Section 165 of the Constitution and went on to
argue that Advocate Jiba was guilty of misconduct notwithstanding the court
judgment granting condonation.
5.2.6.
Third, the Concourt’s own observation is
that “recently this Court has been
inundated with cases where there have been disregard for its directions. In its
efforts to arrest this unhealthy trend, the Court has issued many warnings
which have gone largely unheeded.”
This suggests many similarly situated lawyers, probably whites, have
disregarded court rules and directions. The question is why the GCB has not prosecuted
even a single one of the white advocate who have disregarded the directions of
the highest court in the land and ignored explicit warnings issued? Related to
this is the fact that Adv Jiba has in this litigation been represented by
Advocates who are members of the GCB.
If she was not targeted by the GCB on various grounds including racism,
why were these advocates not subject to striking out applications?
5.2.7.
Fourth, the Concourt cites statistics
evidencing “….now a growing trend for
litigants in this court to disregard time limits without seeking condonation.
Last term alone, in eight out of ten
matters, litigants did not comply with the time limits or the directions
setting out the time limits. In some cases litigants either did not apply for condonation at all or if
they did, they put up flimsy explanations. This non-compliance with the
time limits or the rules of Court resulted in one matter being postponed and
the other being struck from the roll.” The question raised again is if there was noncompliance by
80% of litigants in the matters where is evidence that the GCB has pursued the
advocates involved for such flagrant violations? What did Muller and the GCB do to investigate the conduct of
lawyers who “disregard time limits without seeking condonation” while it
pursued Advocates Jiba and Mrwebi who were actually granted condonation by the
court? A proper investigation of
Adv. Muller’s misconduct will reveal the gross perversion of justice and racism
at play here – Adv. Jiba and Mrwebi were subjected to disparate treatment and
punished for conduct in which they sought and obtained condonation by Judge
Murphy while white lawyers who “disregard time limits without seeking condonation”
were left unchallenged. The
undeniable vindictiveness of punishing an individual for conduct in which a
court granted “condonation” is surely going to bring our judicial system into disrepute.
5.2.8.
Fifth, if the Concourt’s observation that “we have reached a stage where litigants and lawyers disregard the Rules and
directions issued by the Court with monotonous regularity” is correct
what steps has the GCB taken against any white advocate who has failed to
comply? As a corollary, has any court application ever been filed for any of these
white advocates to be struck off the roll for delays in court proceedings where
“condonation” was granted by the court for the said delays?
5.2.9.
Sixth, Judge Murphy’s judgment took into account Advocate
Jiba’s alleged failure to act expeditiously. Significantly, Murphy pronounced that he “condoned” the late
filing of the papers “in the interest of justice.” On the same facts, Adv.
Muller and the GCB opportunistically rushed to have advocates Jiba and Mrwebi
punished twice for the alleged offence Judge Murphy had appropriately
addressed. Since Murphy’s condemnation of Jiba was followed by a judgment
condoning the said deficient acts, Jiba could not appeal the said judgment or
even the adverse comments therein.
Adv. Muller and the GCB took advantage of that by judge-shopping – they
hawked the same case before different judges and sought harsher penalty than
the reprimand already issued by Judge Murphy. Adv Muller and GCB conduct
transgresses a fundamental constitutional due process rule and undermines the
rule of law. It undermined
judicial independence and brought the judiciary into disrepute.
5.2.10.
Seventh, in the Press Release Adv. Muller issued for
the GCB on 17 November 2014 he announced that the GCB resolved to make an
application for striking off in respect of all three members of the NDPP,
Advocates Jiba, Mrwebi and Mzinyathi. Has the GCB ever brought an application
against any other member of the NDPP or any advocates briefed by the State’s
Attorney’s Office who have been subject to trenchant and scathing criticism by
the Courts?
5.2.11.
Eighth, Adv. Muller and GCB Press Release
stated that at a meeting of its Executive Committee on Saturday, 15 November
2014, the GCB “considered a request from the Office of the National Director of
Public Prosecutions (“NDPP”) that the GCB bring applications against three
senior members of the NDPP in terms of section 7 of the Admission of Advocates
Act, No. 74 of 1964 (“the Admission of Advocates Act”).” It further states that the “request by
the NDPP arises from the conduct of all three members of the NDPP as deponents
to affidavits in several recent High Court applications. Trenchant criticism
has been leveled at all three individuals in judgments of the High Courts and
the Supreme Court of Appeal. The judgments are those in Freedom Under Law v National Director of Public Prosecutions 2014
(1) SA 254 (GNP); NDPP v Freedom Under
Law 2014 (4) SA 298 (SCA); Booysen v
Acting National Director of Public Prosecutions & Others [2014] 2 All
SA 391 (KZD); and Zuma v Democratic
Alliance (Case No. 836/2013) [2014] ZASCA 101 (28 August 2014).” Has the GCB ever brought similar
applications on the basis of court criticism of counsel or parties in
litigation? Why did the GCB exclude from its considerations the SCA judgment of
Brand J in which Ms. Jiba’s position was vindicated and which overturned some
of Judge Murphy’s factual findings?
5.2.12.
Ninth, the GCB Press Release also stated
that “none of the individuals concerned is a member of any of the constituent
Bars of the GCB. The GCB nevertheless considers that the judicial criticism of
these three admitted advocates obliges it to accede to the request of the NDPP
and to make application to the High Court in terms of section 7 of the
Admission of Advocates Act.”
Why has the GCB failed to take similar action in regard to persons who
are actually “members member of any of the constituent Bars of the GCB” and who
have been the subject of judicial criticism? If the GCB has ever brought such
similar applications for advocates who are not members “of any of the
constituent Bars of the GCB” for judicial
criticism the public is entitled to know the identity the advocates
involved by name, race, gender and please state the Judge(s) to whom the said
applications were presented and the verdicts/outcome of the said applications.
5.2.13.
Tenth, the GCB Press Release stated: “The High Court, however, has no machinery to
conduct investigations which may be necessary for this purpose. Accordingly, it
is reliant on others to draw the relevant facts to its attention. Section 7(2)
of the Admission of Advocates Act provides that the GCB is an entity which may
make application to the High Court for the striking off or suspension from
practice of any advocate.” In
light of the evidence of widespread flouting of court rules by white advocates
and others cited by the Concourt in 2013, what steps has the GCB taken to use
its “machinery” to investigate the errant advocates and how many applications
have been made by the GCB to the High Court for the striking off or suspension
from practice of any advocate? These cry out for investigation as well.
5.2.14.
Eleventh, between 2009 and the present how
many Press Releases has the GCB issued to announce the launching of an
application for the suspension or striking off of an advocate before the
application was prepared, filed and/or served on the advocate concerned? If
Muller and the GCB contend that this pre-annoucement of proposed applications
is standard GCB operating procedures please identify the advocates involved by
name, race, gender and please copies of the said Press Release and identify
each news organization and NGO to which said announcements were sent.
5.2.15.
Twelfth, there is clear evidence even from
the limited data available that the GCB has treated white advocates more
leniently and granted them indulgences where they committed more serious
offences. Published law reports are replete with instances where white
advocates were harshly criticized by judges for their lack of candour and
dishonesty and condemned for their conduct of court proceedings. A case in point is Geoff Budlender SC.
who represented the plaintiffs in Thubelisha
Homes and Others v Various Occupants and Others (13189/07) [2008] ZAWCHC 14
(10 March 2008). The court
described Budlender’s conduct in a manner that suggested his lack of candour
with the court. It stated:
“[76] To conclude this aspect of the judgment, Mr. Budlender’s argument
also loses sight of what was authoritatively laid down by the Supreme Court of
Appeal in City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 (6)
SA 417 referred to in paragraph [53] supra, where the court held “…the
Constitution does not give a person a right to housing at State expense at a
locality of that person’s choice…”. Ironically
Mr. Budlender was one of the counsel involved in the Rand Properties-case, yet
he made no reference to the case at all. It is my judgment that the
residents of Joe Slovo had no legitimate expectation nor any right to remain at
Joe Slovo. The right is the right of access to adequate housing. It is not the
right to remain at the locality of their choice, namely Joe Slovo.”
5.2.16.
This was judicial criticism but the
white-dominated GCB chose to ignore it and no disciplinary action was taken
against Adv. Budlender. The duty of candour to a tribunal is a cardinal
principle that is best explained by the ABA Model Rule 3.3 which provides in
part that a lawyer may not knowingly “fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel.” This rule is designed to ensure that
when lawyers are representing clients in court, they preserve the integrity of
the judicial system by not allowing the court to be misled by a false understanding of the law or facts. The duty to disclose adverse authority is narrowly drawn,
focusing only on authority in the controlling jurisdiction that is intentionally
withheld. See, also, Daisy Hurst Floyd,
Candor Versus Advocacy: Courts’ Use of Sanctions to Enforce the Duty of Candor
Towards the Tribunal, 29 GA. L. REV. 1035, 1039 (1995). See also, the cases of Schoeman v. Thompson, 1927 WLD 282 at
283 and Katzenellenbogen v Katzenellenbogen and Another 1947 (2)
SA 528 (W) at 530. In both
cases counsel were aware of facts which would have been fatal to their clients’
causes - in both cases opinion of the court was that those facts should have
been disclosed. The standard of conduct expected of a legal practitioner in his
dealings with the Court is spelt out succinctly in Toto v Special Investigating Unit and Others 2001 (1) SA 637 (E) at
683A-F as follows:
‘It is trite that it is the duty of a litigating party’s legal
representative to inform the court of any matter which is material to the
issues before court and of which he is aware – see, for example, Schoeman v Thompson 1927 WLD 282 at
283. This Court should always be able to accept and act on the assurance of a
legal representative in any matter it hears and, in order to deserve this
trust, legal representatives must act with the utmost good faith towards the
Court. A legal representative who appears in court is not a mere agent for his
client, but has a duty towards the Judiciary to ensure the efficient and fair
administration of justice – see the remarks of De Villiers JP in Cape Law
Society v Vorster 1949 (3) SA 421 (C) at 425. As was observed by James JP in
Swain’s case supra in a passage since followed, inter alia in Society of
Advocates of Natal and Another v Merret 1997 (4) SA 374 (N) at 383 and Pienaar
v Pienaar en Andere 2000 (1) SA 231 (O) at 237, the proper administration of
justice could not easily survive if the professions were not scrupulous of
their dealings with the Court.’
It is also spelt out concisely in State v Baleka and Others (4) 1988 (4)
SA 688 (T) at 705E-F thus:
‘The administration of justice is founded upon the preservation of the
dignity of the Courts. It is the duty of counsel and attorneys to assist in
upholding it. They are not mere agents of the clients; their duty to the Court
overrides their obligations to their clients (subject to their duty not to
disclose the confidences of their clients). The conduct of the defence team,
when measured against the high standards set for the professions, falls far
short thereof.’
5.2.17.
There is well-developed US case-law on the
subject which is discussed only briefly here to highlight the importance of the
rule. In the Matter Of: The Complaint of Mike's, Inc. and Mike's Marine, Inc., for
Exoneration from or Limitation of Liability, 337 F.3d 909 (2003), the US
Court of Appeals, Seventh Circuit condemned as “bad faith” the behavior
similar to the one attributed to Budlender. The Court stated:
What concerns us more about appellants'
conduct was their specific failure to bring the Mers case to the Missouri
district court's attention. Not only was Mers decided contrary to appellants'
position and in the Eastern District of Missouri, but the firm representing
appellants was also counsel to the party bringing the limitation action in Mers.
This is not a case where the appellants can claim they were unaware of the
contrary authority through lax research or some other reason. Here appellants'
counsel had actual knowledge of the Mers decision (they acknowledged this much
at oral arguments) and were clearly in the best position of any party to bring
this case to everyone's attention. Then, further evidencing their lack of good
faith, appellants finally did bring the Mers case to the district court's
attention only after the court had ruled against them on the question of the
definition of "district"…This position alone suggests the absence of
good faith. Added to this is their choice not to seriously advance the transfer
argument until after losing the initial question and their failure to bring the
possible statute of limitations problem to the Missouri district court's
attention. The result is an indication of bad faith. Cf. Mike's I, 317 F.3d at
898 ("Our intuition is that these decisions reflect a calculated trial
strategy by Mike's counsel.").
5.2.18.
In another case, Batt v. City and County of San Francisco, case no. A114633 (CA 1st
Dist. Sept. 12, 2007), the court stated that it was unethical for an attorney
to fail to address in his brief, cases that, even if not directly on point,
”clearly are pertinent to any meaningful discussion of the issue.” The court cited Rule 5-200 of the Rules
of Professional Conduct, requiring that attorneys employ only those means “consistent
with the truth” and that attorneys not “seek to mislead the judge … by an
artifice or false statement of fact or law.” To interpret the California Rule, the court found persuasive
ABA Model Rule 3.3 which requires a lawyer to disclose relevant authority
“directly adverse to the position of the client and not disclosed by opposing counsel.”
5.2.19.
In another case, Jorgenson v. County of Volusia, 846 F.2d1350(11th Cir.
1988) the Eleventh Circuit upheld the imposition of sanctions against a party
who failed to cite adverse, controlling precedent in support of a motion for a
temporary restraining order and a preliminary injunction. In the lower court,
the party receiving the sanctions had argued that a Florida County ordinance
was invalid; the ordinance prohibited nude or semi-nude entertainment in
commercial establishments where alcohol was sold or consumed. Id. at
1351. The court found Rule 11
sanctions warranted by the failure to cite two "clearly relevant"
cases. One was a United States
Supreme Court decision; the other was a "long-awaited" decision in
which the Supreme Court of Florida held that the state of Florida had delegated
to counties and municipalities power to regulate the sale and consumption of
alcohol. The Florida Supreme Court decision made it much more difficult to
challenge successfully an ordinance such as the one attacked by the appellants.
The court noted that the appellants had deliberately withheld the Florida
Supreme Court's recent decision. Id.
at1351-52. In commenting on the basis for sanctions, the Eleventh Circuit held:
"The appellants had a duty to refrain from affirmatively misleading the
Court as to the state of the law. “
5.2.20.
In another case, Golden Eagle Distributing Corporation, v. Burroughs Corporation,
809 F.2d 584 (9th Circuit 1987) the court was emphatic in stating that “vigorous
advocacy is, necessarily, truthful advocacy.” It cited a report by the Joint Conference on Professional
Responsibility established by the American Bar Association and the Association
of American Law Schools. The committee undertook to set out the duties of
lawyers in terms of social functions that made the lawyer's role
understandable, acceptable, and even necessary. See Introductory Statement of
Cochairmen Lon L. Fuller and John D. Randall, "Professional
Responsibility: Report of the Joint Conference," 44 ABA Journal 1159
(1958). The report, in large measure, reflected the jurisprudence, the
insights, and the wisdom of Professor Fuller. The report stressed that "the
integrity of the adjudicative process itself" depends upon the
participation of the advocate in order to hold in suspense the mind of the
judge, prevent premature closure of the judge's mind, and make a wise decision
possible. The function of the advocate defined his responsibilities and the
limits of advocacy. The report concluded that a lawyer whose "desire
to win leads him to muddy the headwaters of decision" and who
"distorts and obscures" the true nature of a case "trespasses
against the obligations of professional responsibility." Id. at
1161.
5.2.21.
Modern codes of ethics have followed this
line of thought. The American Bar Association's Model Code of Professional
Responsibility invoked the report of the Joint Conference in stating that a
lawyer today "stands in special need of a clear understanding of his obligations and
of the vital connection between these obligations and the role his profession
plays in society."
The first disciplinary rule of the Code is that "a lawyer shall not
... engage in conduct involving dishonesty, fraud, deceit or
misrepresentation." DR 1-102(A)(4). The Disciplinary Rule does
not distinguish misrepresentation of fact and misrepresentation of law.
The court continued as follows:
The lawyer
has a duty to work within the boundaries of professional responsibility. He is
not free to suborn testimony, to perjure himself, to offer perjured testimony,
or to misrepresent facts or law. No conflict exists between his duty to
work within these restraints and his duty to his client. A lawyer who misrepresents the
law has failed to discharge the obligations owed to the judges of the court. Apart from explicit rules, a federal court
has inherent power to award sanctions including counsel fees against a lawyer
who has acted in bad faith. Roadway Express, Inc. v. Piper, 447 U.S.
752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980). Bad faith may be found
not only in the actions that led to the law suit, "but also in the conduct
of the litigation." Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36
L.Ed.2d 702 (1973). It is apparent that when there is an absence of good faith in the
presentation of an argument there will be bad faith on the part of the lawyer
making the argument. The lawyer is open to sanction under the inherent power of
the court.
5.2.22.
The foregoing is consistent with other
court ruling which have stated that a lawyer should not be able to proceed with
impunity in real or feigned ignorance of authorities which render his argument
meritless. See, e.g., Rodgers v. Lincoln
Towing Service, Inc., 771 F.2d 194, 205 (7th Cir.1985).
5.2.23.
Another case of a white advocate who was
similarly subjected to judicial criticism in harsh tones is that of Advocate
Paul Hoffman. Two complaints were
filed against him by Paul Ngobeni and Higher Education Transformation Network
(HETN) respectively. After investigation, the GCB informed the complainants
that it would file an application in court for Hoffman’s name to be struck from
the roll. Inexplicably, the GCB
has now informed the complainants that it intends to halt the process
altogether because Adv. Hoffman spoke to the Chief Justice and the latter
“forgave” him. This is another
clear case of white advocates being protected at all costs by the GCB.
5.2.24.
The GCB has never pursued these white
advocates and has always been content that the court’s harsh reprimand was
sufficient sanction and deterrence. For white advocates, the GCB accepts the
established principle that a court’s admonition or adverse comments against an
advocate is tantamount to sanctions and a stain on the reputation of the lawyer
involved. Accordingly, the GCB never pursues these errant lawyers in parallel
proceedings where they seek harsher sanctions of striking them off the roll.
But the GCB adopts a different stance when it comes to black advocates.
5.2.25.
Thirteenth, Adv. Muller as the then Chairperson
of the GCB and the entire GCB Executive Committee committed gross acts of
racial discrimination and breach of ethical rules applicable to advocates. The
GCB mouse-trapped Judge Legodi by adopting an unprecedented discriminatory
approach towards Advocate Jiba – it bypassed the procedures normally accorded
accused advocates and went straight to the High Court seeking a striking off
remedy. Because the GCB
acknowledges that the High Court “has no
machinery to conduct investigations which may be necessary for this purpose” it
was incumbent upon the GCB to be scrupulously honest, unbiased and to act with candour. Due process required nothing less that
fairness in this case. The racist and underhanded tactics you used on behalf of
the GCB and as an officer of the court resulted in a court’s decision that has
not only deprived both Advocates Jiba and Mrwebi of their constitutional right
to ply their trade but, worse still, it has stripped them of their dignity and
civil rights.
5.2.26.
Cumulatively, the actions alluded to above
are clear evidence that the vestiges of racism and apartheid live on in the GCB
and the organized legal profession. Selective prosecution is the enforcement or
prosecution of laws against a particular class of persons and the simultaneous
failure to administer l laws against others out-side the targeted class. The
U.S. Supreme Court has held that selective prosecution exists where the
enforcement or prosecution of a Criminal Law is "directed so exclusively against a particular class of persons … with a
mind so unequal and oppressive" that the administration of the
criminal law amounts to a practical denial of Equal Protection of the law (United
States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687
[1996], quoting Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220
[1886]). Selective prosecution is a violation of the constitutional guarantee
of equal protection for all persons under the law. The equal protection
doctrine requires that persons in similar circumstances must receive similar
treatment under the law. Here evidence will show that the vague GCB policy of
targeting black Africans for disciplinary action and harsher sanctions had a
discriminatory effect and that it was motivated by a discriminatory purpose. To
demonstrate a discriminatory effect, we are able to show that similarly
situated white advocates or those whites who committed worse offences were not
disciplined or subject to applications for striking off. The cases of Geoff Budlender
SC and Paul Hoffman are clear and irrefutable evidence.
6.
Whether Advocate Jeremy Muller SC and the GCB Deliberately Revealed
Privileged Documents and Misled the Court About Waiver of Legal Professional
Privilege.
6.1.
The GCB Press Release of 17 November 2014
states that at a meeting of its Executive Committee on Saturday, 15 November
2014, the GCB “considered a request from the Office of the National Director of Public
Prosecutions (“NDPP”) that the GCB bring applications against three senior
members of the NDPP in terms of section 7 of the Admission of Advocates Act,
No. 74 of 1964 (“the Admission of Advocates Act”).” It further states that the “request by the NDPP arises from the
conduct of all three members of the NDPP as deponents to affidavits in several
recent High Court applications. Trenchant criticism has been leveled at all
three individuals in judgments of the High Courts and the Supreme Court of
Appeal.”
6.2.
In paragraph 8.28 of the Muller Affidavit
he claim that the GCB’s legal representatives made a request to the NPA to
“furnish them with any documentation which may be of relevance in this
application. No privilege was claimed in
respect thereof. Any privilege that
may have existed regarding the communications between counsel and the State
Attorney and/or the office of the NPA or NDPP attaches to the office and not
the person who happens to receive the document. I therefore submit that any privilege which might have been
claimed by the office of the NDPP has been waived and that this Honourable
Court is at large to have regard to these documents and their contents in
considering whether the respondents are fit and proper persons to continue to
practice as advocates.” As shown
below, his statement that “no privilege was claimed” in respect of the
documents relating to Advocates Jiba and Mrwebi’s consultation with counsel and
the legal advice received from counsel is false and misleading.
6.3.
By Adv. Muller’s own admission, he knew
that the conduct being impugned was that of Advocates Jiba and Mrwebi (as
acting NDPP and DPP respectively) and he also knew that Nxasana, the NDPP subsequently appointed, had a serious
conflict of interest and had assumed an adversarial posture against Advocates
Jiba and Mrwebi. In
light of such palpable conflict of interest, it is absurd and downright
misleading to assert that the NPA or NDPP could conceivably have a right to
waive a legal privilege on behalf of, and without the consent of the very
advocates it was targeting for adversarial legal proceedings. By Muller’s own admission, he knew of
allegations to the effect that there were internal conflicts within the NPA
which were “manifestations of political manoeuvring by factions or individuals
within and outside of the NPA.” Muller
Affidavit, para. 7.8. Under these circumstances it was rank dishonesty
for him to pretend that Nxasana who represented one faction could effectively
waive a legal privilege for Advocates Jiba and Mrwebi.
6.4.
The crisp legal questions here are (1) was
there a legal professional privilege that existed in favour of Advocates Jiba
and Mrwebi; (2) was there effective waiver of such legal privilege and who had
the authority or right to waive that privilege under the circumstances; (3)
Given the knowledge Advocate Muller and the GCB heard about the conflicts
within the NPA should they have proceeded with caution and rejected the notion
that NDPP Nxasana who sought to have Advocates Jiba and Mrwebi disbarred did
not have the authority to waive legal professional privilege for the same
advocates he targeted. Adv. Muller
and the GCB knew or should have known that there was an irreconcilable conflict
of interest and the waiver of the legal professional privilege was clearly
aimed at prejudicing Advocates Jiba and Mrwebi.
6.5.
Adv. Muller deliberately accepted
documents he knew were subject to legal privilege and, driven by his bias and
desire to place both Advocates Jiba and Mrwebi at a procedural disadvantage,
decided to use the privileged documents in adversarial court proceedings
without seeking a waiver from them.
Legal advice privilege covers communications between lawyers and their
clients whereby legal advice is sought or given. As confirmed by the Constitutional Court in Thint (Pty) Ltd v National Director of
Public Prosecutions and Others, Zuma and Another v National Director of Public
Prosecutions and Others, [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1)
SA 1 (CC); 2008 (12) BCLR 1197 (CC) ‘[t]he
right to legal professional privilege is a general rule of our common law which
states that communications between a legal advisor and his or her client are
protected from disclosure, provided that certain requirements are met.’ Id.
at para
183 The requirements are (i) the legal advisor must have been acting in a
professional capacity at the time; (ii) the advisor must have been consulted in
confidence; (iii) the communication must have been made for the purpose of
obtaining legal advice; (iv) the advice must not facilitate the commission of a
crime or fraud; and (v) the privilege must be claimed. Thint supra, note 124.
The character of the rule is accepted to be substantive rather than
procedural; see S v Safatsa and Others
1988 (1) SA 868 (A) at 885-6 adopting a passage in the judgment of Dawson J in Baker v Campbell 1983] HCA
39, (1983) 153 CLR 52, (1983) 49 ALR 385 in the High Court of Australia to the
effect that ‘[legal professional]
privilege extends beyond communications made for the purpose of litigation to
all communications made for the purpose of giving or receiving advice and this
extension of the principle makes it inappropriate to regard the doctrine as a
mere rule of evidence. It is a doctrine which is based upon the view that
confidentiality is necessary for proper functioning of the legal system and not
merely the proper conduct of particular litigation....’. (The judgments in Baker v Campbell provide a compendious and most useful
international survey of the pertinent jurisprudence on the history and
development of the rule.[3]
6.6.
The rationale for the privilege has been
expressed in various ways and has evolved over the centuries. Thus at one stage the privilege was
even considered to be that of the lawyer rather than of the client and, until
well into the nineteenth century it applied only in respect of communications
in relation to pending or contemplated litigation. A M & S Europe Ltd v Commission of the European Communities
(Case 155/79) [4] is a modern expression of the ethos underpinning the existence of the
rule and the premium that societal values attach to it:
Whether it is described as the right of the client or the duty of the
lawyer, this principle has nothing to do with the protection or privilege of
the lawyer. It springs essentially from the basic need of a man in a civilised
society to be able to turn to his lawyer for advice and help, and if
proceedings begin, for representation; it springs no less from the advantages
to a society which evolves complex law reaching into all the business affairs
of persons, real and legal, that they should be able to know what they can do
under the law, what is forbidden, where they must tread circumspectly, where
they run risks.
The learned authors Hoffmann and Zeffert
in their work The South African Law of Evidence observe at p248:
"The privilege exists in order to
promote the utmost freedom of disclosure by persons who need to obtain legal
advice. It is impossible for an advocate or attorney to advise a client
properly unless he is confident that the client is holding nothing back, but such
candour would be difficult to obtain if
the client thought that his advisers could be compelled to reveal everything
that he had told them." (Italics added)
6.7.
Once a communication is privileged, it
remains privileged. Enroshipping
Corporation of Monrovia v Minister of Agricultural Economics and Marketing 1979
(1) SA 637 (C). In the words of Snyman J in the case of Heiman, Maasdorp & Barker v Secretary
for Inland Revenue and Another 1968 (4) SA 160 at p 162 E - F,
"[t]his privilege accorded to litigants or
possible litigants has been devised by the Courts and is based on public policy.
It is part of our common law. The reason for it may be stated briefly as being
essential for the proper administration of justice so that a litigant may be able to
take his legal adviser fully into his confidence and to make full disclosure to
him of the circumstances of his case without fear of betrayal. Furthermore, as
a litigant cannot be compelled to give evidence against himself, he must know
and be assured that his legal adviser also will not without his consent be able
to give evidence against him in regard to disclosure made in the course of
consultation. This well-established rule is to be found throughout our
jurisprudence and has repeatedly been described as sacrosanct and inviolate."
(Italics added)
6.8.
Adv. Muller made a misleading and false
claim that “any privilege that may have existed regarding the communications
between counsel and the State Attorney and/or the office of the NPA or NDPP attaches
to the office and not the person who happens to receive the document.”
This is misplaced, absurd and belied by the analysis which follows. The crisp
question arises, of course, as to whether professional privilege can attach to
the National Director of Public Prosecutions, and as a corollary where the
“litigants” are the ANDPP and other senior prosecutors in the employ of the
NPA, the latter may without prior consultation with or the consent of the ANDPP
and DPP, waive the applicable legal privilege? In this respect, it was decided as far back as 1898 in the
case of Calcraft v Guest (1898) 1QB
759; (1895-9) AH ER Rep 346 that the privilege can be claimed, by the client,
long after the relationship of client and legal adviser has come to an end -
"once privileged always privileged." A successor in office (NDPP) does not
have unbridled right to waive the privilege of his predecessors simply because
he now has developed a dislike of the former litigants owing to political
rivalry and other motives.
Likewise, Adv. Muller and the GCB was not at liberty to accept, rely
upon and use this ill-gotten waiver to the disadvantage of the putative
“litigants”.
6.9.
The authority cited with regard to the
latter category is that of Auten v
Rayner [No2] (1960) 1 QBD 669. In that case a subpoena was served on a
member of the staff of the Director of Public Prosecutions with regard to
certain classes of documents in his possession. The Attorney-General
successfully claimed Crown privilege in respect of some classes of documents
and professional privilege in respect of the remaining two classes. The
judgment of Glyn - Jones J in the matter reads thus at pp680/681:
"[T]he
Attorney-General submits that the Director of Public Prosecutions is entitled
to claim a professional privilege analogous to the privilege claimed in respect
of documents in the possession of a solicitor. There is, perhaps, a little
difficulty there, because the right to
claim privilege is that of the client rather than the solicitor. The
Attorney-General says that for the
purpose of such a claim to privilege, the Director is his own client. / am
not sure that there is a precise analogy between the position of the Director
and the position of a solicitor; but
those rules of public policy which have resulted in there being established a
right of a client and solicitor to claim privilege as to documents and
statements in the possession of the solicitor appear to me to apply with equal,
if not greater, force to the position of the Director of Public Prosecutions."
(Italics added)
6.10.
That Adv. Muller claims a privilege
belongs to the “office” of the NPA is disingenuous and portrays an attempt to
mislead the court about his knowing misuse of legal privilege and to deceive
the court about the rights of Advocates Jiba and Mrwebi. It is absurd to hold that the legal
advice obtained by Advocates Jiba
and Mrwebi can potentially have far-reaching implications for their
professional careers but that they lack rights to be informed about waiver of
legal privilege by persons who are their adversaries and were not “litigants”
at the time the applications were litigated in Court.
7.
Advocate Muller Made False Assertions and Misled the Court About the
So-Called Breytenbanch Memorandum.
7.1.
Advocate Muller misled the Court both in
his presentation and assertions regarding Advocate Jiba’s conduct regarding the
so-called Breytenbach’s memorandum.
In order to mislead the Court and to sustain the fiction that Advocate
Jiba had a motive or reason to withhold the so-called “Breytenbach memorandum”
Adv. Muller assiduously avoided mentioning the existence of another court
judgment which was contrary to his allegations. This is the published undisputed court judgment which
refuted his allegations. See, Breytenbach
v National Director of Public Prosecutions (J1397/12) [2012] ZALCJHB 68 (18
July 2012) http://www.saflii.org/cgibin/disp.pl?file=za/cases/ZALCJHB/2012/68.html&query=Breytenbach. This is a judgment by Cele J in a case where Ms. Breytenbach filed an
application for urgent interdict to set aside her precautionary suspension.
Specifically, she sought an order that her suspension “on 30 April 2012 is declared to have been unlawful”; that her
suspension on 30 April 2012 is set aside. She also requested that the NPA be
directed to reinstate her and to allow her to resume the normal duties in which
she was engaged at the time of her suspension.
7.2.
We apologize for the prolixity of the
quoted passages below but we believe this is necessary to expose Adv. Muller’s
misrepresentations to the Court. Some facts relevant to the current dispute can
be gleaned from the Judge Cele judgment and are highlighted as follows:
[6] On 31
October 2011, an attorney, Mr Ronald Mendelow, acting on behalf of his client
Imperial Crown Trading 289 (Pty) Limited (ICT), laid a complaint against the
[Breytenbach] with the NDPP. The complaint has a genesis from a civil dispute
which arose between the Department of Mineral Resources, Kumba Iron Ore Limited
with its subsidiary Sishen Iron Ore Co (Pty) Limited (Sishen), Arcellor Mittal
SA Limited (Mittal) and ICT. This dispute is the subject matter in the High
Court judgment in Sishen Iron Ore Co and others v The Minister of Mineral
Resources and others, case 28980/10, handed down on 15 December 2011…
[11] ICT
had also lodged a fraud complaint with the Serious Economic Offences Unit of
the Hawks against Sishen’s holding company, Kumba. Superiors at the Economic
Offences Unit wanted the Kumba case to be dealt with separately from the ICT
case. [Breytenbach] was not responsible for the investigation of the complaint
against Kumba. ICT later complained that the [Breytenbach] was not even-handed
in her handling of the complaints against ICT and Kumba.
[13] In the
course of investigating the ICT case, the applicant and Lt-Colonel Van Wyk
applied for a search warrant in terms of section 21, to search certain premises
including those of ICT. They asked for Mr Hellens’ assistance with the
preparation of the application for the search warrant. The search warrant was
issued by a magistrate in Kimberley on 26 July 2011 and was executed by SAPS.
They seized a large volume of evidence including documents and electronic
evidence downloaded from a computer and two cellular telephones at ICT’s
offices.
[14] On Friday 19 August 2011, ICT
launched an urgent application in the Kimberley High Court for the search
warrant to be set aside and for the return of evidence seized under it. An
interim default order was granted, in terms of which SAPS had to deposit all
the evidence seized under the warrant with the Registrar of the High Court for
safekeeping pending the determination of the remainder of the application. The
SAPS opposed ICT’s application. Sishen and Kumba also sought and obtained leave
to oppose it. All the respondents filed affidavits in opposition to ICT’s
application.
[15] The
applicant also participated in the litigation in Kimberly including filing
affidavits, taking legal advice from Mr Hellens on the proper cause of action
to take. At that time, Lt-Colonel Van Wyk had deposed to an affidavit in the
Kimberly High Court dispelling the allegation by ICT that Mr Hellens was
conducting and directing the investigation. Lt-Colonel Van Wyk had said that Mr
Hellens was not involved and that application for a search and seizure warrant
was prepared by her assisted by the applicant. Mr Hellens was not mentioned. At
that time both the applicant and Lt-Colonel Van Wyk downplayed the extent of Mr
Hellens involvement in the criminal investigation. According to the respondent,
it was also alleged that during the search and seizure, Mr Hellens, as
Sishen/Kumba counsel, was granted unfettered and unhindered access to the
premises and the seized documents.
[17] On 25
November 2011, the applicant was called to a meeting with Advocate Karen Van Rensburg,
the Acting CEO of the NPA, Advocate Mzinyathi, and Dr Ramaite, a Deputy NDPP.
Advocate Van Rensburg told her that they had received a complaint against her,
without divulging the nature of the complaint or even the identity of the
complainant. She said that they proposed to transfer the applicant to the
office of the DPP, North Gauteng. The applicant protested, saying if they did
so, it would be tantamount to a conviction without a hearing and that she would
resign in protest with immediate effect. Advocate Van Rensburg asked her to
leave the room for them to consider her response.
[18] When
she was called back in, Advocate Van Rensburg said that the applicant could
continue with normal duties but had to withdraw from the ICT case. She agreed
to do so. Particulars of the complaint against her and the steps proposed to be
taken to investigate it were to be sent to her. After the meeting, she arranged
with Advocate Paul Louw of her office to take over from her as the prosecutor
in the ICT case. He did so.
[19] On 2
December 2011, Mr Wasserman, an Acting Senior Manager in the NPA’s Integrity
Management Unit, was appointed to head a team to conduct a preliminary
investigation against the applicant. In January 2012, Mr Wasserman’s
investigation team said it had found
that a prima facie case of misconduct by the applicant existed. On the
strength of the preliminary findings by Mr Wasserman’s team, on 01
February 2012, the NPA decided to initiate the process for the possible
suspension of the applicant. On 1 February 2012, the NPA issued a notice of
intention to suspend the applicant. She received the notice on 2
February 2012. Also, on 1 February 2012 the applicant heard that NPA had
publicly announced that she had been suspended from duty. The media reported
the announcement on the following day.
[20] An article in the City Press reported that the
applicant had been suspended and quoted an NPA spokesperson Mr Mthunzi Mhaga as
having said that all cases she was handling would be re-assigned to other
equally capable prosecutors within the NPA. Mr Mhaga also confirmed in an
interview with Talk Radio 702 on 2 February 2012 that the applicant had been
suspended. While the respondent conceded
to having issued the public statement about the suspension of the applicant, it
contended that a communication error had taken place resulting in such
unintended announcement.
[21] The
applicant consulted with and briefed an
attorney, Mr Gerhard Wagenaar, who was to find out from the NPA whether she had
indeed been suspended. He met with Mr Ronnie Pather of the NPA on 2
February 2012. Mr Pather gave him a letter for the applicant from Advocate Van
Rensburg dated 1 February 2012. It stated
that the NPA intended to suspend her and gave her 48 hours to give reasons why
she was not to be suspended. The only reason she gave for their intention to
suspend her was that she had abused her powers in execution of her duties as a
Senior Deputy Director of Public Prosecutions in an investigation under the
Kimberley or the ICT case.
[22] Mr Wagenaar
addressed a letter to Advocate Van Rensburg
on 6 February 2012, enquiring whether it was true that the decision to suspend
the applicant had already been taken and he asked for a copy of the complaint
as the applicant felt she could not otherwise meaningfully respond to it.
Advocate Van Rensburg responded on the same day but to no satisfaction to the
applicant and her attorney. She felt that she had not been given any meaningful
explanation of the allegations against her to so as to respond accordingly. The
applicant did not submit any reasons within the 48 hours given to her of why
she was not to be suspended. All that NPA had from the applicant was her
affidavit of 8 February 2012 in which she responded to the same accusations
made in the ICT’s replying affidavit in the Kimberly matter.
[23] The NPA’s public announcement that the applicant
had already been suspended, Advocate Van Rensburg’s failure to confirm whether
that was so and her refusal to give the applicant a copy of the complaint or
any meaningful particulars about it, made the applicant feel that the NPA had
decided and was determined to suspend her and was merely paying lip service to
the requirement that she be afforded an opportunity to put her side of the case.
[24] On 14
and 17 February 2012, Mr Wagenaar addressed further letters to Advocate Van
Rensburg, in which he asked her as a matter of urgency, to furnish a copy of
the complaint or particulars of it. The request was not favourably met.
[25] On 8 February 2012, after seeking and obtaining permission from Advocate
Mrwebi, the applicant deposed to an affidavit for the Kimberly High Court
matter. For the first time the applicant
admitted the involvement of Mr Hellens in the drafting of the search and
seizure warrant, but said that it was not uncommon in complex matters for
the State or prosecution to solicit the assistance of outside counsel. According to the respondent, Mr Hellens had
no business in drafting and settling affidavits on behalf of the State,
including affidavits deposed to by the applicant and Colonel Van Wyk. Mr
Hellens was not counsel for the State. He was counsel for Sishen/Kumba, an
adversary of ICT in the criminal investigation.
[26] The essence
of the complaint lodged against the applicant and Captain Van Wyk was that they
had aligned themselves with Mr Hellens and his clients. ICT’s complaint was
further that the applicant did not consider certain Sishen and Kumba officials
to be suspects in the investigation of the criminal complaint ICT had laid
against them. They said that the applicant had clearly become involved in that
investigation, and yet her conduct and that of Mr Hellens at court on 28
October 2011, supported their suspicion that she had no true intention to
investigate ICT’s complaint against Sishen and Kumba. The allegations that were
made against the applicant questioned her impartiality, objectivity and whether
the applicant was in contravention of section 32 of the NPA Act. The NPA
regarded the allegations as serious given the role of the NPA and its
prosecutors in the prosecution of crime. They are required by section 32 of the
NPA Act and the code of conduct for prosecutors and the prosecution policy to
act impartially, and without fear, favour or prejudice.
[27] On 7
February 2012, Mr Wasserman requested the applicant to surrender the NPA laptop
allocated to her, so that he could conduct investigations into the ICT
complaints. The applicant undertook to make the laptop available and to allow
the making of a copy of the hard drive on the assurance by NPA that it would
have access only to official and not private information, asserting a claim
that she had a right to the protection of her private material on her computer.
The applicant was however, not suspended then and, with the exception of the
exchange of correspondence between her attorney and Advocate Van Rensburg no
further developments of note took place until April 2012.
[28] On 18
April 2012, Mr Wasserman met with the applicant and Mr Wagenaar, as her attorney.
Mr Wasserman handed them a copy of ICT’s original letter of complaint of 31
October 2011 and a letter from Mr Wasserman dated 18 April 2012. His letter
informed her of the NPA’s intention to suspend her and invited her written
response by 25 April 2012. ICT’s complaint made the same accusations as those
made in the Kimberly High Court matter to which the applicant had responded in
her affidavit. She then gave Mr Wasserman a copy of that affidavit. She was
informed for the first time of the nature of the complaint against her but she
felt she was still not informed of the reasons why the NPA considered
suspending her. She felt she could, for the first time, make meaningful
representations about the complaint against her but still could not make any
representations on the proposed suspension and she consulted with her attorney.
[29] On Monday
30 April 2012, when the applicant arrived at her office she was met by two NPA
officials who handed to her the letter of suspension from the Acting NDPP dated
23 April 2012. The letter said in paragraph 3 that: ‘After careful
consideration of the facts at our disposal, you are hereby precautionary
suspended’. She was to adhere to the directive of the letter of suspension that
she had to refrain from any contact with any of the staff of the NPA. The NPA
further issued a public statement of that suspension on which the media
reported later the same day.
[30] Mr Wagenaar addressed further letters
to the NPA on 2 and 3 May 2012, inter alia, asking for the facts leading to and
the reasons for the decision to suspend the applicant and he also asked the NPA
for an undertaking that it would adhere to the prescribed limit of 60 days
within which her disciplinary enquiry would be held. He asked for a list of
witnesses with whom the applicant was not to have contact.
[31] The
Acting NDPP responded to Mr Wagenaar’s letter of 2 May 2012 in a letter dated 4
May 2012 saying that the decision to
suspend the applicant was based on the seriousness of the allegations against
her and the NPA’s belief that her continued presence at work might jeopardise
the investigation into the allegations against her. She declined to
identify the NPA witnesses with whom the applicant was not allowed to have
contact and merely said that this prohibition was a precautionary step to avoid
possible interference with the investigation. She said the information to which
she had had regard in her decision to suspend the applicant comprised ICT’s
complaint and the applicant’s and Colonel Van Wyk’s affidavits made in response
to ICT’s accusations in its replying affidavit.
[32] The
applicant initially regarded the complaint against her as spurious, baseless
and wholly unsubstantiated. On 1 June 2012, the applicant launched this
application. On 11 June 2012, the applicant was served with a notice to attend
her disciplinary enquiry which was scheduled to take place on 19 June 2012. The
charges levelled against her were detailed in the charge sheet which on 18 June
2012 was later amended in order to provide further particulars to the
allegations levelled against her.
[33] The Applicant
launched this application principally on the grounds that her suspension was
for an ulterior motive, was unfair and had therefore to be set aside. She
alleged that her suspension related to the role she played as a prosecutor in
the matter involving Lt General Mdluli. The applicant contended that she was
suspended in order to protect General Mdluli from prosecution. Advocate Jiba
was said to have merely used the ICT complaint against the applicant as an
excuse to suspend her. In response to these submissions, the respondent said
that the applicant had recklessly and falsely made serious allegations against
Advocate Jiba. That was said to have been carefully devised by the applicant to
divert attention from the serious allegations she was facing regarding her
conduct, which conduct was said to have tarnished the good name of the NPA and
brought the NPA into disrepute. The applicant was said to have persisted with
serious unsubstantiated allegations in circumstances in which she knew that
those allegations were false and were a ploy on her part devised to divert
attention from the serious allegations levelled against her.
[34] The respondent denied that the allegations
contained in the applicant’s affidavit relating to the criminal investigations
against General Mdluli were relevant to these proceedings. It submitted that
the allegations were frivolous, irrelevant and vexatious. The conduct of the
applicant in this matter was said to amount to an abuse of the processes of the
court. The respondent contended that it would be seriously prejudiced if the
allegations contained in the applicant’s affidavit were not struck out in the
sense that the respondent would be required to deal with irrelevant allegations
which were never considered when the decision to suspend the applicant was made.
[35] A
summary of the facts alleged by the respondent to be frivolous, irrelevant and
vexatious with the result that the respondent would be seriously prejudiced if
the allegations contained in the applicant’s affidavit were not struck out
follows hereunder.
[36] Two
members of staff working under supervision of the applicant, Advocate Jan
Ferreira and Advocate C B Smith were in charge of investigations for fraud and
corruption against a very senior member and head of the Crime Intelligence Unit
of the SAPS, one Lieutenant General Richard Mdluli. The investigating officer
in the matter was Colonel Kobus Roelofse, a senior officer of the SAPS’ special
investigations known as the Hawks.
[37] On 24
October 2011, General Mdluli was arrested on the fraud and corruption charges.
It seems that after his arrest, some members of the Crime Intelligence Unit
working under him came forward with incriminating evidence which led to further
investigations of fraud and corruption charges against him.
[38] On 17
November 2011, General Mdluli’s attorneys, Messrs Maluleke Seriti Makume
Matlala Inc, handed written representations to Advocate Lawrence Mrwebi, as the
Special Director of Public Prosecutions and National Head of the SCCU. They
asked for the fraud and corruption charges against General Mdluli to be
withdrawn. On 21 November 2011, Advocate Mrwebi forwarded the representations
to the applicant, asking for a full report on the matter by 25 November 2011.
The applicant henceforth took charge of the matter. She asked her colleague
Advocate Smith to prepare the report requested by Advocate Mrwebi. Advocate
Smith prepared such a report dated 22 November 2011, refuting the allegations
on which General Mdluli’s representations were based.
[39] She forwarded
Advocate Smith’s report per memorandum dated 24 November 2011 to Advocate
Mzinyathi, the DPP North Gauteng, and to Advocate Mrwebi, pointed out that General
Mdluli’s representations were based on wild and unsubstantiated allegations and
recommended that his prosecution be continued so that a court could decide on
his guilt or innocence.
[40] On 28
November 2011, the applicant received a further memorandum from Advocate
Mrwebi, copied to Advocate Mzinyathi. He was dissatisfied with Advocate Smith’s
memorandum and required a summary of the docket, an analysis of the evidence
and an analysis of the applicable law together with the entire docket by no
later than 2 December 2011. She asked Advocate Smith to prepare the report
required by Advocate Mrwebi. He did so in a memorandum dated 30 November 2011
and attached an electronic copy of the docket to it. She forwarded the
memorandum to Advocate Mzinyathi and copied it to Advocate Mrwebi in a
memorandum dated 30 November 2011.
[41] On 4
December 2011, the applicant received two memoranda from Advocate Mrwebi. The
first was a covering memorandum which referred to the second as a consultative
note. Advocate Mrwebi instructed in the covering memorandum that, for the
reasons set out in the consultative note, the charges against Lt-General Mdluli
and Colonel Barnard were to be withdrawn immediately. From the consultative
note the applicant understood the only reason for the withdrawal of the charges
to have been that, Advocate Mrwebi was of the view that the investigation of
the fraud and corruption charges against General Mdluli was the exclusive
preserve of the Inspector General of Intelligence in terms of section 7(7) (cA)
of the Intelligence Services Oversight Act 40 of 1994. The applicant totally
disagreed with the decision taken and reasons proffered by Mr Mrwebi for the
withdrawal of charges against Lt-General Mdluli. She consulted with Mr
Mzinyathi as her immediate superior. On 14 December 2011, the fraud and
corruption charges against General Mdluli were withdrawn.
[42] When
the Inspector General of Intelligence was to an extent involved in this matter,
he issued a letter received by the applicant under cover dated 23 March 2012
from General Dramat of the SAPS, stating that the matter fell out of his scope
of operation in. The contents of that letter were a subject of subsequent
discussion held by the applicant and Mr Mrwebi on 26 March 2012.
[43] On 27
March 2012, the applicant received a memorandum from Advocate Mrwebi calling on
her to explain how and why his consultative note of 4 December 2011 had been
disclosed to General Dramat and to the Inspector General of Intelligence. The
applicant explained that she had given a copy of his consultative note to Brigadier
Moodley of the Hawks, the superior officer of the investigating officer Colonel
Roelofse. Advocate Mrwebi responded to the letter from the Inspector General of
Intelligence. He did not contest the views expressed by the Inspector General
of Intelligence and no longer insisted that the latter had the sole preserve to
investigate the fraud and corruption charges against General Mdluli. He did not
attempt to defend this proposition which had been the sole basis of his
instruction of 4 December 2011 that the fraud and corruption charges against
General Mdluli be withdrawn. He however refused to reconsider his decision.
[44] The applicant and Advocate Ferreira prepared a
memorandum dated 13 April 2012 for submission to Advocate Jiba to persuade her
to reinstate the charges withdrawn by Mr Mrwebi against General Mdluli and that
an instruction that the prosecution of General Mdluli be withdrawn, was a
mistake. The memorandum was delivered to Advocate Jiba, the Deputy NDPPs and
Advocate Mrwebi only on 24 April 2012. Six
days later the applicant was served with a letter of suspension from Advocate
Jiba dated 23 April 2012.
7.3.
On 18 Juy 2012, Judge Cele delivered a
judgment dismissing Breytenbach’s application. He concluded: “The applicant has not shown the existence of
any extraordinary or compelling urgent circumstances to justify a final
declaration of the unlawfulness of her suspension. There are reasonable
prospects that if the disciplinary hearing against her is persisted with, it will
be finalised within a reasonable time period. If not, she may refer an unfair
labour practice dispute.”
7.4.
What is remarkable and illustrates the
gross injustice and mischief in the GCB application and Judge Legodi’s judgment
attempting a post-mortem or retrial of cases is illustrated by the following
factual discrepancy.
7.5.
Judge Legodi’s judgment states the GCB alleged that Advocate
Jiba “did not disclose to the court that on 13 April 2012, she had received a
24 page memoranda from Adv. Breytenbach and that she deliberately attempted to
mislead the court.” That
is flatly contradicted by Judge Cele judgment. The Cele judgment states the memorandum was received on 24
April 2014, that is a day after a suspension letter was written by Ms. Jiba for
Advocate Breytenbach’s suspension. And yet in paragraph 9.19 of the Muller
Affidavit he knowingly ignored this Court finding and stated: “Jiba failed to disclose that on 13 April
2012, she had received a 24 -page Memorandum from Breytenbach containing a forceful
argument in favour of proceeding against Mdluli on the corruption charges and
wherein Breytenbach stated her view that the instruction to withdraw the
charges against Mdluli and his co-accused …were bad in law and in fact illegal.” Adv. Muller made up his own concocted
version and sequence of events and refused to acknowledge a ruling by a black
judge that the so-called Breytenbach memorandum was received after Ms. Jiba had
taken an adverse administrative action against Breytenbach and authored a letter
placing the latter on suspension. This is legally significant and puts into
context Advocate Jiba’s assertion that she did not at that time consider
Breytenbach to be relevant to whether the impugned decisions of 14 December
2011 independently made by Advocate Mrwebi before her appointment as ANDPP were
liable to be set aside.
7.6.
Cele J found in para. [44]: “The applicant
and Advocate Ferreira prepared a memorandum dated 13 April 2012 for
submission to Advocate Jiba to persuade her to reinstate the charges withdrawn
by Mr Mrwebi against General Mdluli and that an instruction that the
prosecution of General Mdluli be withdrawn, was a mistake. The memorandum was
delivered to Advocate Jiba, the Deputy NDPPs and Advocate Mrwebi only on 24
April 2012. Six days later the applicant was served with a letter of
suspension from Advocate Jiba dated 23 April 2012.
7.7.
Judge Cele’s judgment (which Muller and
the GCB caused Judges Legodi and Hughes to flagrantly ignore), clearly accepted
as a fact and concluded that the Breytenbach memorandum was received a day
after Advocate Jiba had written her a letter of suspension dated 23 April
2012. Accordingly, her conclusion
that she did not consider that “the
memorandum received from Adv Brevtenbach 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” was correct and
unassailable. Ms. Jiba further
explained (in light of Breytenbach’s labour problems, serious misconduct
complaints against her and suspension) that Breytenbach’s memorandum “was a document from a prosecutor who failed
to execute tasks assigned to her by her superior.” Judge Cele had fully
considered the matter and expressly refused to grant Breytenbach an interdict
after fully canvassing the allegations against her.
7.8.
Advocate Muller made misleading statements and erroneous
selective assertions which resulted in gross miscarriage of justice and brought
the judiciary into disrepute. It
caused both judges Legodi and Hughes to make seemingly far-fetched and
speculative assertion that betrays bias and utter judicial incompetence. They claimed in the judgment that “it
is difficult to avoid the conclusion that her affidavit was an
attempt by Jiba to deliberately to mislead the court”. They asserted:
“Jiba probably when she deposed to her affidavit on 2 July 2013 and
stated what is quoted in paragraph 136 above, particularly paragraphs 21, 22
and 25 never thought that one day the memorandum of Breytenbach will surface
in court proceedings. It is not her version that she forgot about it when she
deposed to her affidavit on 2 July 2013. Instead, she brings in a very startling
defence, which in my view, only serves as a trap to herself and displays her
again as an un-repented and dishonest person.” Advocate Muller caused this absurd and
obvious falsehood to be contained in a court judgment. The truth is that the
Breytenbach memorandum had already surfaced in court proceedings and was
contained in a court judgment of 18 July
2012, issued a full year before the impugned Jiba affidavit was drafted and
presented to the Murphy court and more than two(2) years before judges Legodi
and Hughes issued their judgment. The Cele judgment was published and that begs
the question: how on earth could Ms. Jiba have purposely maintained a lie
hoping that a memorandum would not “surface
in court proceedings” when the Cele J judgment was already published (a
full year before) and had fully exposed the irrelevant nature of the
Breytenbach memorandum.
7.9.
What Adv. Muller did in his affidavit was to ignore the Cele
judgment and persuade Judge Legodi to elevate his disagreement with Ms. Jiba’s
assessment of the relevance of the memorandum to a wild, unsubstantiated
accusation that her defence “only serves
as a trap to herself and displays her again as an unrepentant and dishonest
person.” The Cele judgment was available as it is published and judicial
officers and advocates are presumed to know about court judgments. Adv. Muller either ignored the Cele
judgment or deliberately failed to disclose it.
7.10.
Adv. Muller failed Judge Legodi and Judge Hughes by failing
to disclose the Cele judgment which was contrary to the theory he sought to
hawk in the case against Advocate Jiba and Mrwebi. Instead of marshalling all
the facts in an impartial manner for a fair adjudication of the case, Adv.
Muller set out to select only supposedly adverse court judgments and stray
remarks expressing criticism and ignored those undermining his case. Adv. Muller’s actions prejudiced Judges
Legodi and Hughes and resulted in a highly irrational and a rambling conclusion
by a judicial officer untethered to the evidence in the court records.
7.11.
Contrary to Adv. Muller, Ms. Jiba was
correct in discounting the self-serving Breytenbach memorandum which she
received on 24 April 2012 and after Breytenbach’s suspension letter was
completed. Moreover, as judge Cele
stated on para.[19] of his judgment:
On 2 December 2011, Mr Wasserman, an
Acting Senior Manager in the NPA’s Integrity Management Unit, was appointed to
head a team to conduct a preliminary investigation against the applicant. In
January 2012, Mr Wasserman’s investigation team said it had found that a prima facie case of misconduct by the applicant
existed. On the strength of the preliminary findings by Mr Wasserman’s
team, on 01 February 2012, the NPA
decided to initiate the process for the possible suspension of the applicant.
On 1 February 2012, the NPA issued a notice of intention to suspend the
applicant. She received the notice on 2 February 2012.
7.12.
That Breytenbach was already discredited
is only part of the story. Breytenbach dishonestly and opportunistically sought
to wrap herself around with the Mdluli matter she knew the FUL was already
litigating. As Judge Cele
recounted:
[33] The Applicant
launched this application principally on the grounds that her suspension was
for an ulterior motive, was unfair and had therefore to be set aside. She
alleged that her suspension related to the role she played as a prosecutor in
the matter involving Lt General Mdluli. The applicant contended that she was
suspended in order to protect General Mdluli from prosecution. Advocate Jiba
was said to have merely used the ICT complaint against the applicant as an
excuse to suspend her. In response to these submissions, the respondent said
that the applicant had recklessly and falsely made serious allegations against
Advocate Jiba. That was said to have been carefully devised by the applicant to
divert attention from the serious allegations she was facing regarding her
conduct, which conduct was said to have tarnished the good name of the NPA and
brought the NPA into disrepute. The applicant was said to have persisted with
serious unsubstantiated allegations in circumstances in which she knew that
those allegations were false and were a ploy on her part devised to divert
attention from the serious allegations levelled against her.
7.13.
As discussed by the Court it appears
Advocate Breytenbach had discredited herself by insinuating herself personally
into the Mdluli matter and commingling the issue of her own work-place
misconduct with those of the Mdluli prosecution. As shown below, Advocate Jiba’s refusal to include the
so-called Breytenbach memorandum in the “Rule 53 record” was correct and the
SCA affirmed the correctness thereof. Ms. Breytenbach’s attempt to piggy-back
on the Mdluli case not only backfired as it exposed her as a biased person but
it also mobilized racist whites who sought to portray her as a victim of
alleged political victimization in the NPA. What is worse is that Adv. Muller
as an advocate ignored court judgments and even attempted a reconstruction of
events quite divorced from the truth. Judge Cele accurately concluded during
the 8 Juy 2012 judgment that “the incumbent in the office of NDPP is Advocate
Nomgcobo Jiba as the Acting NDPP with
effect from 28 December 2011.” Para. 3,Judge
Cele Judgment. Adv. Muller acknowledged this much in
his own Affidavit.
7.14.
On 31 October 2011, and before Ms. Jiba
became an acting NDPP, “an attorney, Mr Ronald Mendelow, acting on behalf of
his client Imperial Crown Trading 289 (Pty) Limited (ICT), laid a complaint
against [Breytenbach] with the NDPP.” Judge
Cele Judgment, para. [6].
Before Advocate Jiba was appointed acting NDPP, serious complaints surfaced that
Breytenbach who also participated in the litigation in Kimberly including
filing affidavits, had an unusually
close and inappropriate relationship with, and was taking legal advice from Mr Hellens
on the proper cause of action to take. It was alleged that at Breytenbach’s
behest, Mr Hellens was conducting and directing the investigation. It was also
alleged that during the search and seizure, Mr Hellens, as Sishen/Kumba
counsel, was granted unfettered and unhindered access to the premises and the
seized documents. Id. at para.15.
7.15.
Before Advocate Jiba was appointed acting
NDPP and on “2 December 2011, Mr Wasserman, an Acting Senior Manager in the
NPA’s Integrity Management Unit, was appointed to head a team to conduct a
preliminary investigation against the applicant. In January 2012, Mr
Wasserman’s investigation team said it had found
that a prima facie case of misconduct by [Breytenbach] existed.”
7.16.
Before Ms. Jiba was appointed acting NDPP
and on “17 November 2011, General Mdluli’s attorneys, Messrs Maluleke Seriti
Makume Matlala Inc, handed written representations to Advocate Lawrence Mrwebi,
as the Special Director of Public Prosecutions and National Head of the SCCU.
They asked for the fraud and corruption charges against General Mdluli to be
withdrawn. On 21 November 2011, Advocate Mrwebi forwarded the representations
to [Breytenbach], asking for a full report on the matter by 25 November 2011” Id. at para. 38. Breytenbach “asked her
colleague Advocate Smith to prepare the report requested by Advocate Mrwebi.
Advocate Smith prepared such a report dated 22 November 2011, refuting the
allegations on which General Mdluli’s representations were based.” Id. She
forwarded “Advocate Smith’s report per memorandum dated 24 November 2011 to
Advocate Mzinyathi, the DPP North Gauteng, and to Advocate Mrwebi, pointed out
that General Mdluli’s representations were based on wild and unsubstantiated
allegations and recommended that his prosecution be continued so that a court
could decide on his guilt or innocence.” Id. at para. 39. On “28 November 2011,
[Breytenbach] received a further memorandum from Advocate Mrwebi, copied to
Advocate Mzinyathi. He was dissatisfied with Advocate Smith’s memorandum and
required a summary of the docket, an analysis of the evidence and an analysis
of the applicable law together with the entire docket by no later than 2
December 2011. Breytenbach asked Advocate Smith to prepare the report required
by Advocate Mrwebi. He did so in a memorandum dated 30 November 2011 and
attached an electronic copy of the docket to it. She forwarded the memorandum
to Advocate Mzinyathi and copied it to Advocate Mrwebi in a memorandum dated 30
November 2011.”
7.17.
Before Jiba was appointed acting NDPP, and on “4 December
2011, [Breytenbach] received two memoranda from Advocate Mrwebi. The first was
a covering memorandum which referred to the second as a consultative note.
Advocate Mrwebi instructed in the covering memorandum that, for
the reasons set out in the consultative note, the charges against Lt-General
Mdluli and Colonel Barnard were to be withdrawn immediately. From the
consultative note the [Breytenbach] understood
the only reason for the withdrawal of the charges to have been that, Advocate
Mrwebi was of the view that the investigation of the fraud and corruption
charges against General Mdluli was the exclusive preserve of the Inspector
General of Intelligence in terms of section 7 (7) (cA) of the Intelligence
Services Oversight Act 40 of 1994. [Breytenbach] totally disagreed with the
decision taken and reasons proffered by Mr Mrwebi for the withdrawal of charges
against Lt-General Mdluli. She consulted with Mr Mzinyathi as her immediate
superior. On 14 December 2011, the
fraud and corruption charges against General Mdluli were withdrawn.”
7.18.
Based on the clear operative facts which
emerged in the Judge Cele court, the decision to withdraw the charges against
Mdluli was taken before Ms. Jiba was appointed acting NDPP effective 28
December 2011. As the SCA later
ruled, the relevant officials Advocates Mrwebi and Mzinyathi took these decisions
and were not obligated to refer their decision to Advocate Jiba. At
the time Advocate Jiba was appointed acting NDPP, the Mdluli charges were
already withdrawn without her involvement. By what rule of logic, common-sense or law can Adv.
Muller an officer of Court and the GCB argue that Ms. Jiba is responsible for
the withdrawal of the charges and that the said withdrawal evinced her
“willingness to protect Mdluli by all means”? Judge Cele quite accurately read the evidence submitted by
Advocate Breytenbach which was that she did not write the November 2011 report
herself – she asked another advocate Smith to author the report. Mrwebi was “was dissatisfied with
Advocate Smith’s memorandum and required a summary of the docket, an analysis
of the evidence and an analysis of the applicable law together with the entire
docket by no later than 2 December 2011.”
There is no suggestion that the author of the report was victimized in
any way by those hell-bent on sheltering Mdluli. Moreover, as Advocate Jiba pointed
out in her submissions, there were other members of the team who did not share
Smiths’/Breytenbach’s views on the matter. Even a post-hoc acceptance of their
views and rejection of Ms. Breytenbach’s belated assertions was justified in
light of the SCA and Judge Murphy’s rulings.
8.
Advocate Muller Made False and Misleading Statement About the Rule 53
record Required of Advocate Jiba and the Nature of Her Compliance Therewith.
8.1.
Adv. Muller’s allegations against Advocate
Jiba in this regard were stated by Judges Legodi and Hughes as follows:
[108.1] That she did not file a full and complete rule 53
record notwithstanding an order compelling her to do so.
8.2.
The SCA recently stated in Helen Suzman Foundation v Judicial Service
Commission (145/2015) [2015] ZASCA 161 (2 November 2016) the salutary
purposes of Rule 53 and rehashed its relevant provisions as follows:
‘(1) Save where any law otherwise provides, all
proceedings to bring under review the
decision or proceedings of any inferior court and of any tribunal, board or
officer performing judicial or administrative functions shall be by way of
notice of motion directed and delivered by the party seeking to review such
decision or proceedings to the magistrate, presiding officer or chairman of the
court, tribunal or board or to the officer, as the case may be, and to all
other parties affected–
(a)
calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected
or set aside, and
(b)
calling upon the magistrate,
presiding officer, chairman or officer, as the case may be, to dispatch
within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be
corrected or set aside, together with such reasons as he is by law required or
desires to give or make, and to notify the applicant that he has done so.’
8.3.
The primary purpose of the rule is to
facilitate and regulate applications for review by granting the aggrieved party seeking to review a decision of an
inferior court, administrative functionary or State organ, access to the record
of the proceedings in which the decision was made, to place the relevant
evidential material before court.[5]
The SCA stated: “Needless to say, it is unnecessary to
furnish the whole record irrespective of whether or not it is relevant to the
review. It is those portions of a record relevant to the decision in issue that
should be made available.[[6]]
A key
enquiry in determining whether the recording should be furnished is therefore
its relevance to the decision sought to be reviewed.”
8.4.
In Johannesburg City
Council v The Administrator Transvaal & another (1) 1970 (2) SA 89 (T)
Marais J interpreted the words ‘record of proceedings’ as follows (at 91G-92A):
‘The words “record of proceedings” cannot
be otherwise construed, in my view, than as a loose description of the
documents, evidence, arguments and other information before the tribunal
relating to the matter under review, at the time of the making of the decision in
question. It may be a formal record and dossier of what has happened
before the tribunal, but it may also be a disjointed indication of the material
that
was at the tribunal’s disposal. In the latter case it would, I venture
to think, include every scrap of paper throwing light, however indirectly, on what the proceedings were, both
procedurally and evidentially. A record
of proceedings is analogous to the record of proceedings in a court of law
which quite clearly does not include a record of the deliberations subsequent
to the receiving of the evidence and preceding the announcement of the court’s
decision. Thus the deliberations of the Executive Committee are as little part
of the record of proceedings as the private deliberations of the jury or of the
Court in a case before it. It does, however, include all the documents before
the Executive Committee as well as all documents which are by reference
incorporated in the file before it.’
8.5.
There exists a clear case of
misrepresentation to the Court by Adv. Muller and the GCB in that he
disregarded the fact that FUL’s application sought to review and set aside the
impugned decisions of 5 December 2011 to
withdraw the corruption charges and the February 2012 decision to withdraw the murder, kidnapping and assault
charges.
8.6.
There was no application by FUL seeking to
review and set aside the ANDPP’s failure or refusal to review Mrwebi’s decision
not to institute criminal proceedings and to review the lawfulness of the
decision.
8.7.
What makes Adv. Muller’s assertions in his
affidavit particularly egregious and misleading is the fact that at the time he
deposed to the Affidavit he had the benefit of both Judge Murphy’s ruling and
the SCA ruling affirming in part and overruling in part Judge Murphy’s
ruling. Adv. Muller could not have
been confused about the Rule 53 record required to be produced and by whom the
said record was to be produced. Simply put, the charges were withdrawn by
Advocate Mrwebi on 5 December 2011, before Advocate Jiba was appointed ANDPP. Further, the decision being reviewed
was Advocate Mrwebi’s decision.
8.8.
It is trite that Judge Murphy considered
and rejected FUL’s submission that “only the NDPP is entitled to re-visit a
decision to prosecute made by a member of the NPA and to withdraw the charges;
and then only after proper consultation as contemplated by section
179(5)(d).” FUL also asserted
that “Mrwebi had no power to withdraw the
fraud and corruption charges at all. It was incumbent on him to refer the
matter to the NDPP. He did not do that. His decision would accordingly be ultra
vires, and could be set aside on that basis alone.” The judge rejected the
argument stating the following:
145. I
am not persuaded that this submission is correct. I doubt its merit from a
pragmatic and policy perspective. It would be onerous indeed if every decision
to discontinue a prosecution taken by prosecutors throughout the country had to
pass across the desk of the NDPP. The argument also takes insufficient account of
the context and legislative scheme enacted by the NPA Act, section 6 of the CP
Act and the Prosecution Policy which, as the Acting NDPP has pointed out in her
answering affidavit, allow DPPs to discontinue a prosecution and more junior
prosecutors to withdraw charges and stop prosecutions.
146. As head of the SCCU, Mrwebi
was a Special DPP, appointed in terms of section 13(1)(c) of the NPA Act. A
Special Director is entitled to exercise the powers and perform the functions
assigned to him pursuant to his appointment. In terms of section 24 of the NPA Act, a DPP may institute
and conduct criminal proceedings and carry out functions incidental thereto as
contemplated in section 20(3). They include the powers in section 20(1) to
institute and conduct criminal proceedings on behalf of the State; carry out
any necessary functions incidental to instituting and conducting such criminal
proceedings; and to discontinue criminal proceedings. Both a DPP and a Special DPP may therefore discontinue a prosecution.
147. Moreover, a DPP, or a more junior prosecutor, is empowered by
section 6 of the CP Act to withdraw charges or stop a prosecution in
circumscribed circumstances with the only limitation being that the prosecution
shall not be stopped in terms of section 6(b) unless the DPP or any person
authorized thereto by the DPP, whether in general or in any particular case,
has consented thereto. Likewise, a
prosecutor may withdraw a charge in terms of section 6(a), but where the NDPP
or the DPP has ordered the prosecution he or she will need prior authorisation.
Where the case is of a sensitive or contentious nature or has high profile, then in terms of the Policy Directives the
prosecutor is only required to seek the advice (not even the permission) of the
NDPP or DPP.
148. It is therefore evident from section 20(1)(c) of the NPA Act,
section 6 of the CP Act and various provisions of the Policy Directives that
legislation and prevailing practice permit prosecutors in many cases to
withdraw charges without referring the question to the NDPP for permission or
review. The Acting NDPP is accordingly correct in her submission that in terms
of the NPA Act and the Policy Directives Mrwebi did not need to refer the
decision to withdraw the fraud and corruption charges to the NDPP.
149. In
my opinion, section 179(5)(d) of the Constitution does not reserve an exclusive
power to the NDPP to discontinue a prosecution. It merely empowers the NDPP to
review a decision of her subordinates to prosecute or not to prosecute, and
specifies the procedure he or she should follow. The use of the verb “may” in
section 179(5)(d) is indicative of a permissive discretion rather than a
mandatory pre-condition. The NDPP may review decisions to prosecute or not to
prosecute, at his or her own instance or on application from affected and
interested persons. The intention of the
drafters of the constitutional provision was not that all withdrawals of
charges have to be approved by the NDPP.
8.9.
As the SCA recently stated, a record would
be evidence, arguments and other information before the tribunal relating to
the matter under review, at the time of the making of the decision in
question. It also stated that a “record of proceedings is analogous to
the record of proceedings in a court of law.” Logically, it follows that Judge Murphy’s finding that the
“Acting NDPP is accordingly correct in her submission that in terms of the NPA
Act and the Policy Directives Mrwebi did not need to refer the decision to
withdraw the fraud and corruption charges to the NDPP” means that the record
sought to be reviewed is that record at the time of the making of the impugned
Mrwebi decision. Further all
courts, Murphy, Cele and SCA found that Mrwebi made the final decision which he
was authorized to make without seeking approval or input from Advocate
Jiba. Accordingly, Adv.
Muller’s distorted and expansive reading of the word “record” and the
provisions of Rule 53 was a deliberate attempt to mislead the court about the
alleged acts and omissions of Advocate Jiba. He rehashed the argument by FUL knowing that it had been
rejected by two courts, including the SCA.
9.
Advocate Muller’s False and Misleading Statement That Advocate Jiba “did not file an answering affidavit by the
due date and had to be directed to do so by the Deputy Judge President and
in addition that she did not file written
heads of argument timeously.”
9.1.
Adv. Muller’s assertion above rests on the
premise that there existed a breach of the rules of court and that the court
had not granted a condonation of the same alleged breaches and that the parties
had not requested a judicial determination of the issues in the litigation
before Judge Murphy. In another
instance of racism and discrimination, Adv. Muller knew Advocate Jiba was
represented by Hodes SC, a white advocate and yet Muller chose to accuse her
and not her counsel of failing to “file written heads of argument
timeously.” Muller must please
explain why he expected Advocate Jiba to file her own written heads of argument
when she had counsel of record properly appointed to represent her.
9.2.
Pressure often causes attorneys to lose
sight of the time limits prescribed by the rules of the various courts,
especially in litigation of novel constitutional issues. The courts will
usually grant condonation for a failure to observe time limits but, as Steyn CJ
in Salojee v. Minister of Community
Development 1965 (2) SA 135(A) at 140 – 1. In P.E. Bosman
Transport Works Committee v. Piet
Bosman Transport 1980 (4) SA 794 (A).- the court found that where “
virtually all the blame can be attributed to the applicant’s attorneys condonation
ought not …to be granted.”
9.3.
Apart from the statutory provisions, the
court has an inherent power to order an attorney to pay the costs of a case in
certain circumstances. A list of the cases may be found in Cilliers The Law of Costs 3d Edition, para. 10.25. The author
states that the court will in appropriate circumstances award costs de bonis propriis against an attorney and
cites a number of examples where this occurred.
9.4.
Sometimes the sanctions against an attorney or a party can be
harsh words of criticism by courts. Textile
House (Pty) Ltd v Silvestri 1960
(4) SA 800 (W) at 802. – affidavit in a form so “slovenly” that it approached
disrespect for the court on the part of the defendant’s attorney. Court made
known its “disapproval” of the conduct.
10.
Whether Adv. Muller’s Conduct and that of the GCB Is Dishonest,
Undermines Judicial Independence and Violates Sections 165 and 166 of the
Constitution.
10.1.
Simply put, Adv. Muller ignored the
rulings of court granting condonation to a litigant and proceeded to argue that
such “condoned” acts constituted “professional misconduct.” Based on those absurd submissions,
Judges Legodi and Hughes ignored three court judgments and unconstitutionally
usurped the authority of another Judge, purported to revise or amend the
judgment and impugned the judgment of Judge Murphy granting a condonation of
all the issues raised against Advocate Jiba.
Section 165 of the Constitution
unequivocally states the following:
(1)
The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject
only to the Constitution and the law, which
they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the
functioning of the courts.
(4) Organs of state, through legislative
and other measures, must assist and
protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
10.2.
The law stands firmly against any acts,
direct or indirect, that would eviscerate judicial authority enshrined in
Section 165 of the Constitution.
This section states, in keeping with the separation of powers principle,
that the “judicial authority of the Republic is vested in the courts” and not
in some other branch of government. The hierarchy of the courts is established
in Section 166 of the Constitution and it stands to reason that a Judge of the
High Court is not authorized to second guess, revise and amend a final order or
judgment of another High Court Judge of similar status. The only process
through which that can be accomplished is an appeal. The GCB was not a party to the litigation before Judges Cele
and Murphy and as such had no authority or right to interpose perverse
interpretations of the professional rules and to second-guess a final judgment
of another judge granting condonation.
10.3.
The constitution dictates that we must
have an independent judiciary able to interpret and apply laws based on legal
rules and principles “impartially and without fear, favour or prejudice” and
that excludes decisions based on political intentions, expediency or
calculations. When viewed against the express provisions of Section 165(5)
which states that “an order or decision issued by a court binds all persons to whom and
organs of state to which it applies” it makes sense that a final
judgment of the High Court which has not been appealed is binding on all
persons to whom it applies and cannot be second-guessed, amended or subject to
revision by another High Court judge or person. Advocate Muller and the GCB ignored this simple principle
when it launched parallel proceedings in which it sought to re-litigate the
issues of whether conduct for which condonation was granted by a judge of the
High Court can ever qualify as “professional misconduct.”
10.4.
Indisputably, Section 165(5) enshrined in
our constitution a long-standing common law rule. It is trite that once a court
has disposed of a matter finally it cannot correct its own judgment and order.
This is derived from the long standing principle of functus officio. The Supreme Court of Appeal in De Villiers NO and another v BOE Bank Ltd [2004] 1 All SA 481 (SCA),2004 (3) SA 459 (SCA)
affirmed this long standing
principle. The court further highlighted a few exceptions under which a court
may alter its own order or judgments. 'The first is that the principal judgment
or order may be supplemented in respect of accessory or consequential matters
(such as costs).The second exception is where on a proper interpretation, the
meaning of an order remains obscure, ambiguous or otherwise uncertain. The
court may then clarify it so as to give effect to its true intention, provided it does not thereby alter the sense
and substance of the judgment or
order. A third instance in which a court may correct an order is where a
clerical, arithmetical or other error exists in its judgment. The final exception
is where counsel has argued the merits and not the costs of a case but the
court, in granting judgment also makes an order concerning costs . .'[Id].
10.5.
None of this exceptions would allow a
judge in a parallel proceeding to issue a ruling in the matter adjudicated by
another judge which effectively nullifies or amends the effect of the judgment.
The GCB and Advocate Muller knew of these basic principles and yet they chose
for political expediency to undermine the same hallowed rules. It is fundamentally unfair to expect a
party granted condonation in another court to have another judge in parallel
proceedings ignore or amend the said order and punish the party for the
condoned act.
10.6.
Given that even judge Murphy could not
legally correct, amend or supplement his own judgment and order in the Mdluli matter, especially his orders
granting condonation for Advocate Jiba’s alleged delays and non-compliance with
prior court orders, under what legal theory is Judge Legodi able to ignore the
said orders and to disregard the condonation requested and granted by the prior
Murphy court? Effectively, Advocate Jiba was subjected to two
conflicting/contradictory court orders in violation of Section 165(5) which
states that “an order or decision issued by a court binds all persons to whom and
organs of state to which it applies.” She was bound by the order of
Murphy J granting her condonation and yet she was exposed to “professional
misconduct charges” on the basis of the alleged delays and non-compliance
already condoned by the same court.
It was constitutionally impermissible for the GCB and Advocate Jeremy
Muller SC to request Judges Legodi and Hughes to disregard the Murphy order
which favoured Advocate Jiba and to retry issues of reasons for the delay and
justification thereof when these same issues were canvassed and decided before
judge Murphy. It would be legally
absurd to hold that Judge Murphy could not amend or revise his own order
granting condonation for Advocate Jiba’s alleged failures but a subsequent High
Court Judge could do so with reckless abandon.
10.7.
To avoid any misunderstanding of this
misconduct complaint against Advocate Muller and the GCB we must be explicitly
clear that we are not arguing that an advocate who misconducts himself in the
course of litigation before a Court enjoys blanket immunity from subsequent
disciplinary action arising from the said acts or omissions. On the contrary, we point to the normal
approach by Courts in cases where an advocate/attorney is alleged to be guilty
of misconduct and criticized in court proceedings and where the issue of
adjudicating the misconduct is expressly reserved.
10.8.
De Lacy and Another v South African Post Office (CCT 24/10) [2011] ZACC 17; 2011 (9) BCLR 905 (CC) (24 May 2011), is
instructive in this regard. This
was an application for direct access to the Concourt, where the applicants
sought an order declaring that a judgment of the SCA delivered on 13 May 2009
by Nugent JA (Farlam, Navsa, Van Heerden and Mlambo JJA concurring) constituted
an infringement of their right to equal protection and benefit of the law, the
right to a fair hearing and the right to be heard by an independent court that
must apply the law impartially and without fear, favour or prejudice. In
addition, they asked the Concourt to set aside the impugned judgment with its
order, and in effect dismiss the appeal and uphold the cross appeal that were
before the Supreme Court of Appeal. On the same day, 3 May 2010, the Concourt
issued directions in terms of Rule 18 calling on the Post Office to file a
written response dealing solely with the question whether the application for
direct access should be granted.
Having considered the written submission, further directions setting the
application for direct access down for hearing were issued. Thereafter, the
applicants embarked on a bizarre litigation strategy explained in the Concourt’s
judgment later. The Concourt
observed that:
“ … over nearly two years, the same applicants laid bare their
smouldering grievance over the Court decision that overturned their handsome
award of damages. Before the JSC
they complained that, by holding against them, the judges had made themselves
guilty of gross misconduct and gross incompetence – a charge which if proven
may have led to their removal from office. Under oath before this Court they made acerbic and
unremitting accusations of deliberate distortions of evidence and premeditated
and actual bias against a panel of five appellate judges.”
10.9.
The Concourt further observed that on most
occasions “they singled out Nugent JA who
wrote for the Court and heaped the scorn
of dishonest factual findings and deliberate bias on him. On other occasions they heaped the
scorn of dishonest factual findings and deliberate bias on the entire
panel. The applicants did not even
bother to proffer either a motive or purpose that may have collectively moved
an entire bench of senior judges towards the egregious judicial impropriety
attributed to them.”
10.10.
The applicants’ case took an unexpected
turn – with only two clear court days before the hearing, on 3 February 2011,
counsel for the applicants wrote a letter to the Registrar in which he stated:
“it would appear that the Applicants’
Heads of Argument may be viewed as attributing a deliberate distortion of the
facts as contained in the Record and actual bias by the Supreme Court of Appeal
and by Nugent JA in particular.” Counsel further stated: “the Applicants’ do not seek to attribute
either actual distortion or actual
bias, beyond such perception of a reasonable apprehension of bias.” Counsel concluded by stating the
following:
“4. The language used in asserting a
deliberate distortion of the facts and actual bias, without emphasising that
these are in fact a reflection of the perceptions of the Applicants, is
regretted and any such assertions are unqualifiedly withdrawn.
5. An unconditional apology is accordingly
tendered to all parties concerned and particularly to the Supreme Court of
Appeal.
10.11.
On the morning of the hearing, Counsel
repeated that his clients no longer attributed deliberate distortion or actual
bias to the appellate court. They
“regretted any like previous assertions,
which were unqualifiedly withdrawn.
Counsel restated his clients’ unconditional apology and particularly to
the judges concerned. He undertook
to convey the apology to the Supreme Court of Appeal promptly.” Despite the bizarre turn of
events, the Concourt considered itself obliged to consider whether an adequate
case has been made out for the grant of direct access. It considered whether the applicants
have established a reasonable apprehension of bias for the reason that the
factual findings of the appeal court are so unreasonable, or so out of kilter
with the evidence that they are explicable only on the grounds of bias.
10.12.
After a thorough analysis of the evidence, the court denied
the applicants direct access. The
Court stated: “It must also be said that
nothing in the findings of the Supreme Court of Appeal could ever justify the
baseless and scurrilous accusations of a deliberate distortion of facts and
actual bias on the part of the panel of five judges of an appellate court. I therefore conclude that the bias
claim advanced by the applicants bears no prospects of success whatsoever.” Regarding the conduct of the
applicants’ legal representatives, the court stated the following:
118. I have described in great detail the
conduct of the applicants in pursuing this case. It does not bear repetition.
It is conduct that attracts a punitive costs order. The Post Office invited us to make part of that order
payable from the pockets of the applicants’ counsel and attorney (de bonis
propriis). In its oral submissions the Post Office added that the
applicants’ attorney and counsel were more than hired assassins. They
associated themselves with the undignified, wanton and baseless attacks their
clients mounted against the integrity of the judges concerned. The Post Office
drew attention to written argument authored by counsel. This often repeated
word for word the unwarranted sworn accusations. In that way counsel’s argument
made common cause with their clients’ crusade to upset the decision of the
Supreme Court of Appeal which in turn deprived their clients of the attractive
award of R60 million.
119.
Tempting as it is, this is an invitation we ought to decline. The invitation is tempting because the conduct
of the applicants’ legal representatives is not without blemish. As we have
seen, it is indeed so that as they settled their clients’ affidavits and, in
written argument authored by counsel, they rehashed word for word the
unwarranted accusations of their clients. When their clients changed tack, so
did they. They too now accept that their clients’ charges were baseless and
that they owe an unqualified apology to the judges concerned. The question that remains unanswered is
whether these legal representatives had breached the ethical duty they owe to a
court as its officers.
[120] An officer of the court may not
without more convey to a court allegations or claims by a client when there is
reason to believe that the allegations are untruthful or without a factual
basis. This duty is heightened in circumstances where
imputations of dishonesty and bias are directed at a judicial officer who
ordinarily enjoys a presumption of impartiality. It behoves the legal representative concerned to examine
carefully the complaints of judicial bias and dishonesty and the facts, if any,
upon which the accusations rest.
Here it is doubtful whether these legal representatives did so. That, in my view, is a matter which
calls for an enquiry by their respective professional bodies to which the
applicants’ attorneys and advocates belong. An appropriate order
drawing the attention of these professional bodies to this judgment will be
made.
[122] The conduct of the applicants’ legal representatives may have to be dealt with by their respective
professional bodies. They should
be requested to consider whether their conduct amounts to a breach of any
ethical rule. To this extent, the
Registrar will be directed to furnish a copy of this judgment to the Society of
Advocates, Johannesburg, and to the Law Society of the Northern Provinces.
10.13.
What is important here is that the Court
shows that where it has taken notice of alleged violations of ethical or
professional rules, the Court made a referral to the respective professional
bodies and stated: “The conduct of the
applicants’ legal representatives may have to be dealt with by their respective
professional bodies. They should
be requested to consider whether their conduct amounts to a breach of any
ethical rule. To this extent, the
Registrar will be directed to furnish a copy of this judgment to the Society of
Advocates, Johannesburg, and to the Law Society of the Northern Provinces.”
In this way, the Court eschewed any prejudgment or pronouncements over the
guilt or innocence of the legal representatives. It requested the Law Society and the Society of Advocates to
“consider whether their conduct amounts
to a breach of any ethical rule.” In this way, any subsequent jurisdiction
of the professional bodies would be based on the express order of the Concourt
and the court expressly refused to sanction these legal professionals. Accordingly, any further pronouncement
on the actions of the legal representatives would not transgress the provisions
of Section 165(5). It would have
been incompetent for the Concourt to grant “condonation” of the alleged conduct
and then refer the same matter to the professional bodies inviting them, in
effect, to impugn its orders.
10.14.
Our argument is not simply that the GCB and Advocate Muller
caused Judges Legodi and Hughes to independently retry a matter to determine
whether the advocates criticized were ‘fit and proper’ to remain on the roll of
advocates. Rather, the argument is different and is based on the implications
of Section 165(5) - where the offending conduct was brought before the first
High Court Judge, the merits were considered and a judgment or order issued
granting “condonation” for the same alleged misdeed in the interest of justice,
it is incompetent for another judge in subsequent disciplinary proceedings to
retry the matter and issue a judgment or order which purport to disagree with
the first judge’s condonation of the impugned conduct. The express language of
Section 165(5) which states that “an order or decision issued by a court binds
all persons to whom and organs of state to which it applies” must mean
what it says and is binding on Judges Legodi and Hughes. Further, the effect of the Legodi Court
judgment is that, contrary to Section 165(5), Judge Murphy’s order is reduced
to non-binding statement and robbed of its status as an order or decision issued
by a court. Instead of the “condonation”
order being binding on Advocate Jiba, she is now faced with two conflicting
judgments on the same issue because Judges Legodi and Hughes extracted from the
Murphy judgment only adverse comments which could be used to Ms. Jiba’s
disadvantage while ignoring the ruling granting condonation for the same
alleged acts. That was caused by
Advocate Muller’s unprofessional conduct.
10.15.
As stated above, the case raises a
plethora of obvious constitutional issues with far-reaching implications for
the judiciary (judicial independence and impartiality), for the legal
profession (due process rights of advocates who are criticized by courts
without the right to an appeal and collateral consequences of the said adverse
judicial comments) that must be confronted head-on if we are to have a
transformed and non-racist GCB. Independence for our courts essentially means
“freedom from influence”. This ordinary meaning is underscored by the legal
definition of judicial independence, namely the lack of subordination to any
other organ of the state, in particular to the executive. Most importantly,
judicial independence implies that judges are the authors of their own decisions,
and that they should be free from any ‘inappropriate’ influence. The GCB and Advocate Muller despicably
undermined judicial independence.
11.
Whether the Approach of Jeremy Muller SC, the GCB and Judges Legodi and
Hughes Deprived Advocate Jiba of the Right to prompt implementation of a final
and binding judicial decision
11.1.
Section 165 and 166 must be read to
protect the implementation of final, binding judicial decisions (as distinct
from the implementation of decisions which may be subject to review by a higher
court). A court judgment cannot be a trap for the unwary. An advocate who is
criticized by a court which grants condonation for alleged tardiness at the
same time has a right to rely on the finality of the court order. She cannot be
ambushed through another parallel court process where she is required to
justify the granting of condonation and explain her conduct all over again.
11.2.
In a case from the European Court of Human
Rights, the refusal of an authority to take account of a ruling given by a
higher court – leading potentially to a series of judgments in the context of
the same set of proceedings, repeatedly setting aside the decisions given – was
held to be contrary to Article 6 § 1 (Turczanik
v. Poland, §§ 49-51, ECHR, 30-11-2005).
11.3.
In the US and many other
democracies, appellate courts sometimes use their opinions not only to correct
legal errors but also to reprimand lower court judges for controversial actions
or comments. A useful survey can be found in
Gordon Bermant & Russell R. Wheeler, Federal Judges and the Judicial
Branch: Their Independence and Accountability, 46 Mercer L.Rev. 835,
837-38 (1995). In South Africa,
our judges follow similar practice.
But the “reprimand’ to lower court judges are never used as a basis for
impeachment proceedings against these judges. It is accepted that the system of
reprimanding serves as just disposition of the case at hand.
11.4.
In cases involving advocates,
the Constitutional Court discussed some of the prophylactic remedies that could
be utilized against errant advocates without unsettling final court
judgments. See, De Lacy and Another v South African Post
Office (CCT 24/10) [2011] ZACC 17; 2011 (9) BCLR 905
(CC) (24 May 2011), where the Concourt eschewed a judgment over whether the
lawyers had breached the code of ethics and referred the matter to professional
bodies. But the court also
discussed the possibility of invoking punitive sanctions against lawyers in
appropriate circumstances. In De Lacy, despite heavy criticism of the
advocates’ conduct by the Court, an order
de bonis propriis against these legal representatives was refused. The Concourt explained the principle as
follows:
121.I nonetheless decline the invitation
to make the costs order de bonis propriis
against these legal representatives. An order of this nature would be justified
where the conduct of a legal representative, that is not attributable to a
litigant, calls for the court to express its displeasure.[7] This would be
the case, for instance, where there is nothing to suggest that the litigant has
actively associated herself or himself with the conduct of the legal
representative. This cannot be said of the applicants in this case. Both of
them deposed to these utterly unfounded accusations of ulterior motive and
judicial dishonesty. They actively pursued complaints before the JSC rehashing
substantively the same accusations that they made in their affidavits before
this Court. When the matter was heard and counsel explained a change of heart
of his clients, at least one of them, Mr De Lacy, we were informed, sat in
court. We have no reason to infer that the clients did not actively associate
themselves with the allegations and it is also fair to assume that the legal
representatives repeated these acting on instructions from their clients. There
is thus no reason to indemnify the applicants against an adverse and punitive
costs order.
11.5.
In Advocate Jiba’s case, the final order (Murphy) which could have
invoked any of the punitive remedies allowed by law expressly eschewed the
sanctions issue because it was satisfied with Advocate Jiba’s explanation. It granted a condonation which should
be sufficient to prevent another judge from revisiting the issue. A Court’s expression of its displeasure
with an advocate or heavy criticism does not always call for a parallel
disciplinary inquiry by the GCB. The advocate condemned by the Court in a
judgment has the right to insist that the expressed displeasure or punitive
sanctions by the Court which have not been appealed are entitled to finality
and may not be retried in another court or forum.
12.
Whether the conduct of Muller SC and the GCB Impugning Court Judgments
Violates Judicial Independence
12.1.
All the international and regional
instruments guarantee the right to a fair hearing before an independent and
impartial court of law. The independence of the judge is enshrined by Section
165(5) of our own.
12.2.
In 1985, the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders adopted the Basic Principles
on the Independence of the Judiciary, which were subsequently unanimously
endorsed by the General Assembly.[8] These principles can therefore be described as being declaratory of
universally accepted views on this matter by the States Members of the United
Nations, and they have become an important yardstick in assessing the
independence of the Judiciary in the work of international monitoring organs
and non-governmental organizations (NGOs).
12.3.
As shown by principle 1 of the Basic Principles, all branches
of the government, including other institutions, are under a duty "to
respect and observe the independence of the judiciary." Accordingly, the
other branches of government, including “other institutions”, have the duty “to
respect and observe the independence of the judiciary”. This means, more
importantly, that the Executive, the Legislature, as well as other authorities,
such as the police, prison, social and educational authorities, must respect and abide by the judgments and
decisions of the Judiciary, even when they do not agree with them. Such
respect for the judicial authority is indispensable for the maintenance of the
rule of law, including respect for human rights standards, and all branches of
Government and all State institutions have a duty to prevent any erosion of
this independent decision-making authority of the Judiciary.
12.4.
The requirement of independence of the
judiciary in decision-making is further upheld by principle 4 of the Basic
Principles: "There shall not be any
inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts
be subject to revision. This principle is without prejudice to judicial
review or to mitigation or commutation by competent authorities of sentences imposed
by the judiciary, in accordance with the law". When read in the context of Section 165 and 166 of our
Constitution, the provision that “an order or decision issued by a court
binds all persons to whom and organs of state to which it applies”
finds resonance in the stipulation that there“shall not be any inappropriate or unwarranted interference with the
judicial process, nor shall judicial decisions by the courts be subject to
revision.” An exception is made for judicial review or appeals within the
normal hierarchy of the judicial system. It was not open for Judges Legodi and
Hughes to circumvent the normal appellate processes and overturn a substantive
ruling by another judge under the guise of conducting a de novo disciplinary
hearing. I am strengthened in this
assertion by Recommendation No. R (94) 12 of the Committee of Ministers of the
Council of Europe on the independence, efficiency and role of judges which
provides that “decisions of judges should not be the subject of any revision outside any
appeals procedures as provided for by law” (Principle I.2.a.i.), and
that “with the exception of decisions on
amnesty, pardon or similar, the Government or the administration should not be
able to take any decision which invalidates judicial decisions retroactively”
(Principle I.2.a.iv.).
12.5.
The independence of the judiciary has to
manifest itself towards the very judicial system under which it operates. Point 46 of the IBA Standards shows
that, in the decision-making process, a judge must be independent vis-a-vis his
judicial colleagues and supporters.
A judge's attitude should also be an active one, upholding and defending
independence. A judge shall encourage and uphold safeguards for the discharge
of judicial duties in order to maintain and enhance the institutional and
operational independence of the judiciary. The Bangalore Principles of Judicial Conduct, 2002, Point 1.5. In
practice, the independence of the judge will negate the notion of a hierarchy
of subordination. International principles expressly state that the judiciary
shall decide matters before them impartially, on the basis of facts, and in
accordance with the law, without any restrictions, improper influences,
inducements, pressures, threats or interferences, direct or indirect, from any
quarter or for any reason. UN Principle
No. 2.
12.6.
The GCB submission and subsequent Judge Legodi
judgment effectively rejects the notion that Advocate Jiba’s alleged delays
were condoned by another court’s judgment and seeks to use the condonation in a
manner adverse to her. That
violates the right and duty to ensure fair court proceedings and give reasoned
decisions.
12.7.
The independence of a tribunal is
indispensable to fair court proceedings, be they criminal or civil. As laid
down in Principle 6 of the Basic Principles: “The principle of the independence of the judiciary entitles and
requires the judiciary to ensure that judicial proceedings are conducted fairly
and that the rights of the parties are respected.” This means that judges
have an obligation to decide the cases before them according to the law,
protect individual rights and freedoms, and constantly respect the various
procedural rights that exist under domestic and international law. Further,
this important task has to be carried out without any inappropriate or
unwarranted interference with the judicial process (Principle 4 of the Basic
Principles). Judge Murphy’s
judgment which was not appealable could not be revised for the purpose of
putting Advocate Jiba at a procedural disadvantage. Judges Legodi and Hughes
recognized this procedural disadvantage when they stated at para.82 of the
judgment: “Very often when adverse
remarks are made in legal proceedings, the person against whom the remarks are
made is not given the opportunity to state his or her case to the impeding
adverse remarks. It is for this reason that courts do not easily make adverse remarks.
This is one of those cases.” The
GCB should have been aware of and sensitive to that basic principle that
adverse remarks made in judicial proceedings without the opportunity to respond
are inherently
13.
Whether the GCB and Muller SC Acted Out of Spite, Malice and Political
Motives to Violate Advocate Jiba’s Right Not to Have a Final Judicial Decision
Called into Question.
13.1.
According to the jurisprudence of the
European Court for Human Rights, the right to a fair hearing must be
interpreted in the light of the rule of law. One of the fundamental aspects of
the rule of law is the principle of
legal certainty (Okyay and Others v.
Turkey, (Application no. 36220/97; Final 12/10/2005), which requires, inter
alia, that where the courts have finally determined an issue their ruling
should not be called into question (Brumărescu
v. Romania [GC], (Application no. 28342/95) 28 October 1999; Agrokompleks v. Ukraine, (Application
no. 23465/03) Final 08/03/2012).
The ECHR has ruled that judicial systems characterised by final
judgments that are liable to review indefinitely and at risk of being set aside
repeatedly are in breach of Article 6 § 1, concerning the protest procedure
whereby the President of the Supreme Arbitration Tribunal, the Attorney-General
and their deputies had discretionary power to challenge final judgments under
the supervisory review procedure by lodging an objection.
13.2.
The calling into question of decisions in
this manner is not acceptable, whether it be by judges and members of the executive
(Tregubenko v.Ukraine, (Application
no. 61333/00); Final 30/03/2005) or by non-judicial authorities (Agrokompleks v. Ukraine, above). A
final decision may be called into question only when this is made necessary by
circumstances of a substantial and compelling character such as a judicial
error (Ryabykh v. Russia,
(Application no. 52854/99));Final 03/12/2003.)
13.3.
Without question, the principle of legal
certainty and finality of decisions was violated in the manner the GCB
disregarded the judgment of Cele J altogether and selectively misapplied the
judgments of Judge Murphy and the SCA in the manner detailed herein.
14.
Whether the GCB and Muller SC Acted Out of Spite, Malice and Political Motives to Deny Advocates
Jiba and Mrwebi of the Right to Fair determination of Sanctions.
14.1.
Our argument here is that Muller knew that
an order striking an advocate from the roll has dire consequences and deprives
the affected person of important constitutional rights. Section 22 enshrines
freedom of trade occupation and profession. This set of rights is unique among
human rights instruments. The Section states “Every citizen has the right to
choose their trade, occupation or profession freely. The practice of a trade,
occupation or profession may be regulated by law.” Section 25 also enshrines the right to property and, amongst
others covers arbitrary deprivation of property. The Section states “No one may
be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property.” Here Judges Legodi and Hughes simply concluded:
135.9.5. In my view, Jiba was steadfast to do everything in her power
to ensure that the charges against Mdluli were permanently withdrawn. This was
despite the prima facie evidence against Mdluli and failure to withdraw the
fraud and corruption charges in consultation with Mzinyathi. By so doing, was
mala fide and displayed ulterior motive and thus offended against the rule of
law and the Constitution. She must be found to be no longer fit and proper
person to remain on a roll of advocates.
14.2.
Judge Legodi is not alleging that Advocate
Jiba disobeyed a court order regarding Mdluli – he seeks to punish Advocate
Jiba with the benefit of a 20-20 hindsight in the wake of the FUL Review
judgment but without considering the SCA ruling on the same case. Once again Judge Legodi assiduously
avoids discussing Adv. Jiba’s compliance and that the Mdluli charges were
struck off the roll even after they were reinstated following the Murphy
judgment. This is not a mere
judicial oversight – it is a deliberate misreading of the facts to reach a
politically determined outcome.
Advocate Muller caused this false rendition of facts to be presented to
the court and failed to disclose that investigations against Mdluli were
continuing and that the criminal case was in fact reinstated and was
subsequently struck off the roll by a judge. This knowing non-disclosure of facts has resulted in
gross injustice and denial of the opportunity for Adv. Jiba to offer evidence
in mitigation.
15.
CONCLUSION
15.1.
We hereby lodge a misconduct complaint
against Advocate Muller on grounds stated above. If we unearth more grounds for misconduct complaint against
him we will bring those to your attention.
15.2.
We also hereby lodge the complaint of the GCB
institutional racism and disparate treatment of black African advocates, which
we submit must be investigated as a matter of urgency.
15.3.
We leave it up to Adv. Muller’s own
conscience and the GCB whom he purported to act on its behalf, to decide
whether they will, at a minimum offer Advocates Jiba and Mrwebi an apology for
the racist treatment; and whether Muller and the GCB will consider filing an
application to rescind the judgment in General
Council of the Bar of South Africa v Jiba and Others (23576/2015) [2016]
ZAGPPHC 833 (15 September 2016).
15.4.
We accordingly request the expeditious
investigation and conclusion of the matter given the unique set of
circumstances involved. We hope to
hear from you soon.
Lucky Thekisho
National Deputy
Chairperson
#TransformRSA
#TransformRSA
Enquiries: Lucky
Thekisho
Deputy National Chairperson
Tel: 079 183 1313
[1] eThekwini Municipality v Ingonyama Trust
[2013] ZACC 7; 2013 (5) BCLR 497 (CC) (eThekwini).
[2] Id at paras
26-7.
[3] See also Van
Niekerk, Van der Merwe and Van Wyk (in collaboration with Barton), Privilegies
in die Bewysreg (1984) at pp. 28-44 s.v. ‘Die Geskiedenis en Grondslae van
Regsprofessionele Privilegie’.
[4] [1982]
EUECJ C-155/79; [1983] 1 All ER 705, [1983] QB 878, [1982] ECR 1575, [1983] 3
WLR 17 (at page 732-733 of the All ER report; also quoted by Lord Carswell in
Three Rivers District Council & Ors v. Bank of England at para 95).
[5] Jockey
Club of South Africa v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A) at 661H-I
and 662G-H; Cape Town City v South African National Roads Authority &
others [2015] ZASCA 58; 2015 (3)
SA 386 (SCA) para 36. See also D E van Loggerenberg & E Bertelsmann
Erasmus: Superior Court practice (Original Service, 2015) at D1-700; Derek
Harms Civil Procedure in the Superior Courts (2016) para B53.8; Andries Charl
Cilliers, Cheryl Loots & Hendrick Christoffel Nel Herbstein and Van Winsen:
Civil Practice of the High Court and the Supreme Court of Appeal of South
Africa 5 ed (2009) at 40-1291.
[6] Jockey Club
of SA v Forbes (above ) at 660F; Muller & another v The Master & others
1991 (2) SA 217 (N) at 220E; Ekuphumleni Resort (Pty) Ltd v Gambling and
Betting Board, Eastern Cape 2010 (1) SA 228 (E) para 9. See also Comair Ltd v
Minister for Public Enterprises & others 2014 (5) SA 608 (GP).
[7] See South
African Liquor Traders’ Association and Others v Chairperson, Gauteng Liquor
Board, and Others [2006] ZACC 7; 2009 (1) SA 565 (CC); 2006 (8) BCLR 901 (CC)
at para 54 and Baphalane Ba Ramokoka Community v Mphela Family and Others, In
re: Mphela Family and Others v Haakdoornbult Boerdery CC and Others [2011] ZACC
15, CCT 75/10, 21 April 2011, as yet unreported, at paras 42 and 44. The order
is made as a consequence of a material departure from the responsibility of
office by a legal representative. The aim of the order is to indemnify a party
from an account for costs by ordering that representative to pay the costs
himself. Courts will not make such an order lightly. The mere incorrect
rendering of legal services will generally not justify an order de bonis
propriis; it is accepted that it will only be awarded in instances of improper
conduct. (See Van Loggerenberg and Farlam Erasmus Superior Court Practice
(Juta, Cape Town 2010) at E12-3 and E12-27 to 29.) South African courts are not
unique in holding legal practitioners personally liable for costs. Similar
orders are made in Australia, Canada, New Zealand and England and Wales.
[8] See General
Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.