On 26 February City Press reported on a “ground-breaking” decision by the Johannesburg Bar Council (JBC) that, for the very first time, the media were to be granted access to a disciplinary inquiry involving one of its members: Advocate Menzi Simelane, the former DG of the Justice Department.
The panel appointed by the JBC to conduct the inquiry unanimously ruled that “the constitutional imperative of open justice is applicable to disciplinary inquiries of the Bar Council”. The three-man panel – advocates Sias Reynecke, Danie Berger and Dali Mpofu – went on to explain that “the Johannesburg Society of Advocates is much more than an ordinary voluntary association. Its members perform an essential role in the administration of justice, interacting with members of the public and the judiciary in all the courts on a daily basis… the society and its members have a very public profile”.
The panel also ruled that “it is certainly in the public interest that the manner in which the society disciplines its members is not shrouded in secrecy”.
Arguing in favour of media access, the prosecutor appointed by the JBC, Mike Hellens SC, surprised everyone when he revealed that the JBC had decided (he did not say when it had done so) that its practice of holding disciplinary inquiries behind closed doors, especially after 1994, had “simply been wrong”.
In reality these hearings have not only been closed to the press, they have been – and continue to be – closed to everyone, even the complainant. The complainant is not even told the names of the panellists or the prosecutor appointed to present his or her complaint.
In the same week as these worthy arguments were being aired and the panel was making it’s hugely popular ruling, the JBC was just getting around to telling Noseweek reader Jaron Tobias that (unbeknown to him) more than a year earlier, its disciplinary panel had rejected the complaint he filed against two members of the Bar, advocates G D Wickens and Nigel Riley, in January 2011. See noses153, 157, 161 & 172.
Not once had Tobias been contacted by the prosecutor for his opinion or clarification on any matter he had raised; nor informed of the hearing date. He was not told of the panel’s decision and for more than a year was not advised that the JBC had formally approved the finding that Wickens was not guilty of professional misconduct.
Only when Noseweek started publishing monthly reminders did the JBC eventually address the matter – in a letter to Noseweek.
“I find it interesting that Mr Frank Snyckers SC (newly elected chairman of the JBC’s Professional Committee) has chosen to address a letter to Noseweek and not to myself as the main complainant,” Tobias told Noseweek. “In that letter Mr Snyckers states that both matters [involving Wickens and Riley], were referred to a formal [but secret] inquiry with a “pro-forma” prosecutor and a panel of three senior advocates. I want to know the names of the prosecutor and the three senior advocates, as I can only assume they are peers of the advocates I complained about.
“At a hearing in November 2011 the matters were separated. It now emerges from Adv Snyckers’ letter to Noseweek, that the case against Riley has yet to be heard three years later, while the Wickens inquiry was finalised in June 2012 and the JBC endorsed the finding of ‘not guilty’ in October 2012.”
Yet, throughout 2013, Tobias was receiving letters from the JBC advising him that the matters had not been finalised.
Snyckers told Noseweek he had written a letter of apology to Tobias. But two weeks later, Tobias had still not received it.
In March Tobias was still having to write to the JBC: “I have previously advised you of my intention to appeal the decision made by your committee. However, I feel that my position is prejudiced, as I have not been told the grounds for dismissing my complaint.
“I demonstrated how the advocates whose conduct I complained about saw themselves as being above the law. It now appears that the Bar Council see themselves as being above the law, too,” he told Noseweek.
Readers are invited to revisit the facts of the case, set out in the original Noseweek story in nose153 (free online access), and judge for themselves why the JBC might still prefer not to practise what it preaches.
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