“However, one undisclosed fact in his history and experience is that while practicing in the Republic of Namibia as a Deputy Prosecutor-General, Goba was prosecuted and convicted of attempting to obstruct or defeat the course of justice. The factual conspectus of that conviction is captured in three written judgments of the High Court of Namibia delivered on June 29 2004, November 29 2004 and June 14 2011 respectively.”
by Legal Correspondent
ON July 6, President Robert Mugabe suspended Johannes Tomana as Prosecutor-General (PG) following recommendations by the Judicial Service Commission. The president then appointed a tribunal to inquire into the question of the removal of the PG on July 7, the day an Acting PG was also appointed to serve for three months. The Acting PG is Ray Goba.
This opinion relates to the full history of the Goba whose accuracy must of necessity be known to the executive arm of government as led by the appointing authority. In doing this opinion, it is acknowledged that the following materials were used:
Three judgments of the High Court of Namibia in which Goba was a litigant;
Judicial precedents from Zimbabwe’s Supreme Court and other countries, including South Africa; and
Academic and scholarly work on the subject matter of fitness and propriety of a legal practitioner.
Section 259 of the Constitution of Zimbabwe provides for the PG and other officers in the following fashion:
“ (1) There is a Prosecutor-General who is the head of the National Prosecuting Authority (NPA).
(2) The office of the Prosecutor-General is a public office but does not form part of the civil service.
(3) The Prosecutor-General is appointed by the President on the advice of the Judicial Service Commission following the procedure for the appointment of a judge.
(4) The Prosecutor-General must be a person qualified for appointment as a judge of the Supreme Court.”
The above provisions relating to the appointment of a PG applies with equal measure of force to the appointment of an Acting PG. It is therefore imperative to analyse the provisions relating to the qualifications of a judge of the Supreme Court.
Section 178 of the constitution provides as follows:
“Qualifications of judges of Supreme Court:
A person is qualified for appointment as a judge of the Supreme Court if he or she is a Zimbabwean citizen and at least 40 years and, in addition
(i) is or has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English and English is an officially recognised language; or for at least 10 years, whether continuously or not, he or she has been qualified to practice as a legal practitioner in Zimbabwe; or
(ii) in a country in which the common law is Roman-Dutch or English and English is an officially recognised language; and is currently so qualified to practice.
To be appointed as a judge of the Supreme Court a person must be a fit and proper person to hold office as a judge.”
With regard to the meaning of the words “a fit and proper person”. In re Chikweche 1995 (4) SA 284(5) at 291 H-J, Gubbay CJ said the following:
“Construed in context, the words ‘a fit and proper person’ allude, in my view, to the personal qualities of an applicant — that he is a person of honesty and reliability (See S v Mkhise; S v Mosia; S v Jones; S v Le Rouz 1988 (2) SA 868 (A) at 875d).”
Such personal qualities also include the integrity of the candidate for the post concerned.
The Shorter Oxford English Dictionary defines the word “integrity” as “sinlessness…soundness of moral principle; the character of uncorrupted virtue; uprightness; honesty, sincerity”.
The profession of an attorney is an honourable one and as such demands complete honest, reliability and integrity from its members (See Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA)). As Corbett J pointed out in Law Society, Transvaal v Behrman 1981 (4) SA 538 (AD) at 551 E-F: “Clearly, the Law Society has an interest to ensure that persons who are admitted, or re-admitted, and enrolled as attorneys and who by practicing become members of the Law Society are fit and proper persons to be so admitted or re-admitted. The interest comprehends not only the relationship which is created between a member and society, but also the duties and responsibilities which the Law Society assumes in regard to members to the court and to the general public.”
The Acting PG is a qualified legal practitioner in that he is registered as a legal practitioner and indeed he practices as an advocate. However, one undisclosed fact in his history and experience is that while practicing in the Republic of Namibia as a Deputy PG, Goba was prosecuted and convicted of attempting to obstruct or defeat the course of justice. The factual conspectus of that conviction is captured in three written judgments of the High Court of Namibia delivered on June 29 2004, November 29 2004 and June 14 2011 respectively. His continued registration status as a legal practitioner in Zimbabwe without an inquiry into his suitability to remain registered as a legal practitioner can only be reasonably be ascribed to the lack of knowledge of such conviction on the part of the Law Society of Zimbabwe.
The fact that people might not know of Goba’s conviction does not detract from the fact that he is a convicted legal practitioner and a prohibited immigrant in Namibia. The intention of the legislature in providing for the qualification of judges of the Supreme Court touches on three issues, namely:
That the candidate has been qualified to practise as a legal practitioner (i) in Zimbabwe; or (ii) in a country in which the common law is Roman-Dutch or English and English is an officially recognised language; and is currently so qualified to practise.
That the candidate must be a fit and proper person to hold office as a judge.
The offence that, as Acting PG, Goba committed in Namibia bears a rational connection with the object of maintaining the integrity and honour of the profession. Undoubtedly, his conviction reflects upon his integrity and character and it is also relevant for his fitness to be a member of a profession, demanding high standards of integrity from its members.
It is an established rule of practise that the criminal conviction is prima facie proof that an attorney committed that offence and provided that the offence is of a sufficiently serious nature, it is treated as prima facie proof that he or she is unfit to be on the roll of attorneys, the onus being on the attorney to either show that he or she was wrongly convicted or to advance circumstances which would justify his or her remaining on the roll despite conviction (See Ngwenya v Society of Advocates, Pretoria, 2006(2) SA88 (WLD) 90J-91A; Hassim (also known as Essack) v Incorporated Society of Natal 1977(2) SA 757(A) at 768A-B; Incorporated Law Society, Transvaal v Mandela 1954(3) SA 102 (T) 104A).
In ex parte Krause 1905 TS 221 at 223, the principle to be applied in this regard was stated by Innes CJ as follows: “The real reason is this — that in most cases the fact of the criminal conviction shows the man to be of such a character that he is not worthy to be admitted to the ranks of an honourable profession. That is the real ground upon which the court acts in such cases…”
It is not arguable that a conviction of attempting to obstruct or defeat the course of justice carries with it the prima facie taint of dishonesty. Also, it is common cause that Goba has been convicted of an offence involving dishonesty, which conduct is not compatible with that expected of a person who is a fit and proper person to practise as a legal practitioner.
Though it is true that the matter that Goba was convicted of is not directly concerned with the misconduct of an attorney in his professional capacity, the weight of decided authorities does not make such a distinction when punishing an errant attorney. It is common cause that the offence Goba committed has nothing to do with his practices as an attorney.
It is clear, however, that the court will, in a proper case, remove an attorney from the roll where he or she has been convicted of a crime which was not committed in his or her professional capacity (See Incorporated Law Society v Transvaal case (supra) at 107 C-D).
The offence convicted need not be related to actual practising of the profession. In this regard Wessels CJ (as he then was) in Solomon v Law Society of the Cape of Good Hope (supra) at 412 said: “The practice … has been to treat the conviction of an attorney for a criminal offence, whether in his capacity as an attorney or not, as prima facie unfit to be on the roll of attorney.”
In re Hill; LR (1868) 3Q.B 543 Cockburn CJ said: “When an attorney does that which involves dishonesty, it is the best interest of the suitors that the court should interpose and prevent a man guilty of such misconduct from acting as an attorney of the court.”
This brings the question of whether as the Acting PG, Goba is a fit and proper person to continue practicing as a head of the NPA. It can be argued that taking into account the cumulative effect of his conviction and the nature and seriousness of his misconduct, the Acting PG falls short of the standard required of a PG and that he is therefore not fit and proper person to practice as such.
In this regard, the question which has to be answered is whether the facts which were levelled against him in Namibia and on which the Acting PG was convicted show him to be of such character that he is not worthy to remain at the helm of the NPA (See Incorporated Law Society, Transvaal case (supra) at 108C). There is a difference between conviction for committing a miscellaneous offence such as a traffic offence and an offence whose definition of proscription goes to the integrity of justice itself.
No such offence exceeds defeating the course of justice. The conviction for the offence must be viewed with regard to its nature and the degree of moral obliquity on the offender which its commission reflects (See Incorporated Law Society, Transvaal case (supra) at pp. 104, 105).
In the case of a legal practitioner to be said to be unfit, the misconduct complained of must be of a serious nature to an extent that it manifests character defect and lack of integrity (See Incorporated Law Society, Natal v Roux 1972 (3) SA 145(N) at 150 B-C per Linder J).
The Office of the PG demands complete honesty and integrity from its members. Undoubtedly, dishonesty reflects badly upon integrity and character of the incumbent. It is critical to highlight that Tomana is under suspension on allegations of gross misconduct arising from his handling of criminal justice matters. The person who acts during his suspension must not be a convicted and tainted character. The Acting PG was convicted in Namibia of an offence involving dishonesty, which is incompatible with integrity, honesty and reliability required of him while he was then serving as Namibia’s deputy PG.
In this case, the Acting PG committed a misdemeanour that shows dishonesty, a defect of a character and a moral lapse which can likely recur.
In the case of In re Chikweche 1995 (4) SA 284 (ZC) 291 H-J, it was considered that admission to the legal profession is governed first and foremost by statute as well as the inherent common law power of the court over practitioners. It is evident from reading of the constitution that legal qualification is not the only criterion for fitness to hold office as head of the NPA. What the law also envisages is that the incumbent must be a person of experience, integrity and conscientiousness to be entrusted with the responsibilities of the NPA head.
To execute the responsibilities of the office of the PG, the incumbent must also have managerial and leadership skills and qualities. He or she sits at the apex of a complex organisation that employs large numbers of people, bringing together various elements of the criminal justice system.
He or she also possesses an understanding of the socio-political climate that prevails as well as the policy programme of the government. The notion of integrity is one that does not attract much debate in this case. The notion relates to the character of a person — honesty, reliability, truthfulness and uprightness. Conscientiousness, on the other hand, addresses something related but different. It relates to the manner of application to one’s task or duty — thoroughness, care, meticulousness, and diligence and assiduousness.
These fundamental requirements of honesty and integrity and trustworthiness are necessary features of being a fit and proper person to hold the post equivalent to a Supreme Court judge. The same way it is not possible to have a judge of the Supreme Court with a criminal conviction is the same standard entrusted on the head of the NPA.
The public might find unseemly the privilege of replacement of an errant PG, Tomana, by a convicted person, Goba, as that directly undermines the very integrity of the legal system.-ZimIndependent