By Paul Ngobeni
There is growing plethora of evidence that the recent Court decision striking off advocates Jiba and Mrwebi from the roll of advocates was not made in accordance with the law and constitutionally sound principles. Lawyer discipline cases must never be based on politically motivated clamour for revenge and partisan battles for the capture of state institutions. Rather, the purpose of lawyer discipline is to protect the public and the administration of justice from lawyers who do not properly discharge their professional duties to clients, the legal system, and the legal profession. Where guilt is established, discipline is imposed not to punish the lawyer, but to safeguard the administration of justice, protect the public, the courts, the profession, and deter future misconduct. Our judiciary is not supposed to acquiesce in racially motivated and selective prosecution of black legal practitioners by the white dominated General Council of the Bar under circumstances where white lawyers guilty of comparable or more egregious offences receive lenient treatment and no punishment. We know our constitutional democracy is in deep trouble when our judiciary consciously ignores these hallowed legal principles, unabashedly descends into the political arena and renders indefensible judgments. The judgment striking off the roll two senior black advocates is a declaration of war against transformation, common decency and constitutionalism in this country.
Lord Browne-Wilkinson succinctly stated an almost universal rule on lawyer discipline cases in Harris v Scholfield Roberts and Hill (Conjoined Appeals)  UKHL 38 (20 July 2000 He stated: “Any judge who is invited to make or contemplates making an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae.” Sadly, this admonition was ignored when Judge Legodi accepted the GCB’s racially discriminatory premise that black advocates should be subjected to more scrutiny and more exacting performance standards than similarly situated white advocates. The charges against Jiba and Mrwebi included allegations that adverse comments were made against them by other judges. But 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. 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.
No one should be fooled into believing that a judge’s harsh criticism of an advocate ineluctably suggests that disbarment should follow. On the contrary, courts in all common law jurisdictions are extremely reluctant to name misbehaving prosecutors or advocates in their opinions. Publishing the name of a prosecutor (or any other kind of lawyer) is tantamount to issuing a public censure without affording the prosecutor the due process protections to which they are entitled in the lawyer disciplinary system. The GCB was oblivious of the exemplary approach of retired Concourt Justice Moseneke in the De Lacycase – a court faced with errant advocate’s misconduct may deal with the matter itself and censure or reprimand the said advocate or it may order that a copy of its judgment be sent to the professional bodies to consider whether the advocate’s conduct amounts to a breach of any ethical rule.
Judge Murphy’s judgment is ample testimony that our mature judicial system has at its disposal sufficient tools and prophylactic devices to combat alleged prosecutorial shortcomings. Murphy’s judgment took into account 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, the GCB opportunistically rushed to have advocate 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. The GCB took advantage of that by judge-shopping – it hawked the same case before a different judge and sought harsher penalty that the reprimand already issued by Judge Murphy. The GCB transgresses a fundamental constitutional due process rule and undermines the rule of law. It undermined judicial independence and brought the judiciary into disrepute.
The GCB mouse-trapped Judge Legodi by adopting an unprecedented discriminatory approach towards Jiba – it bypassed the procedures normally accorded accused advocates and went straight to the High Court seeking a striking off remedy. Oblivious of the fact that the underlying criticism or reprimand of Jiba by Judge Murphy was itself a sanction, judge Legodi saw his duty as that of scouring the record of the alleged misconduct to determine whether Jiba was a fit and proper person.
That was erroneous approach – in all lawyer discipline cases the court must strive for consistency and usually relies on prior decisions to arrive at an appropriate sanction. The court’s decisions must reflect careful consideration of the factual circumstances of each case and recognition that the nature of the misconduct will not always dictate a particular sanction. Whether a lawyer will be reprimanded, placed on probation, suspended, or disbarred is therefore dependent on the reasoned judgment of the High Court, which has the final responsibility for determining the appropriate discipline. In Jiba, both the GCB and Judge Legodi made no effort to determine whether the alleged criticism by Judge Murphy many years ago were sufficient to make Jiba conform to the law. The Legodi court appears to have been influenced by the political noise and campaign of public vilification against Jiba. Its judgment collapsed the two-stage inquiry of determining guilt and then penalty. The judge simply presumed that striking off the roll was the inevitable penalty.
It is legally incompetent for a High Court judge of equal status to review, question and second-guess the judgment of another judge. Unfortunately, Judge Legodi’s judgment does exactly that and more. He violated the judicial independence principle that ordinarily judges must not only be free, but obliged, to decide cases on their own. Judges must be set apart from someone else’s influence or supervision. Judges must be insulated against and independent from any and all sources of improper influence, including, fellow judges. The question of whether a lawyer made effective argument, was tardy or missed deadlines in a particular case is properly decided by the judge presiding over the case. Absent an appeal, another judge of equal rank cannot review the judgment of the other judge to determine whether condonation should have been granted to Jiba.
Judge Legodi’s judgment is a travesty – gross injustice was not only visited upon Jiba but greater irreparable damage was inflicted on the institution of the national prosecuting authority. The public interest is best served by a prosecutorial decision making process divorced, to the greatest extent possible, from extraneous influences be they political or social. Legodi judgment effectively destroys that room for independence.
Regarding the independence of the NDPP, our judges would do well to heed the admonition of courts from other democracies – the decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not require the approval of the Court. Indeed the Court would seldom have the knowledge of the strength and weaknesses of the case on each side which is necessary for the proper exercise of such a function. The role of the prosecution in this respect, as in many others, is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. As Australian judges Gaudron and Gummow JJ warned in Maxwell v The Queen 1996:
“The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”