The NPA’s unholy trinity D
uring her speech at the Kader Asmal Human Rights Lecture this week, former Constitutional Court Justice Yvonne Mokgoro quoted the late Ismail Mahomed’s warning about what happens when the powerful in society ignore court orders.
In a seminal address at an internal jurists’ conference in Cape Town in 1998 the then chief justice warned that if judgments were routinely ignored “the courts could easily be reduced to paper tigers with a ferocious capacity to snarl and roar but no teeth with which to bite and no sinews to execute their judgments, which may then be mockingly reduced to pieces of sterile scholarship, toothless wisdom and pious poetry”.
He cautioned that “the potentially awesome theoretical power of the judiciary in the Constitution could in those circumstances implode into nothingness”.
The same principle could also be applied to the integrity of the prosecutorial authority. One could easily paraphrase Mahomed and say that, without integrity, the authority could be reduced to a paperless tiger that is unable to ensure justice for the victims of crime.
The case of three powerful individuals in the National Prosecuting Authority (NPA) – Nomgcobo Jiba, Lawrence Mrwebi and Sibongile Mzinyathi – calls for us to think about whether the institution could be reduced to that toothlessness as a result of the corrosion of its integrity. The trio have been accused of serious dishonesty by three different courts as a result of their conduct and testimonies. In Jiba’s case, they have stopped just short of calling her a liar.
It was with this in mind that erstwhile national director of public prosecutions Mxolisi Nxasana set out to give effect to the findings of the courts. Writing in the NPA’s annual report, which was released this week, Nxasana reveals that in July last year he solicited an independent legal opinion about the steps he should take in the wake of the pronouncements of the courts. The opinion of the independent senior counsel was that disciplinary action be taken and a criminal investigation for perjury be instituted against the three. The counsel also recommended that the president, who is the only one constitutionally enabled to act against an NPA head and his or her deputies, be asked to suspend the trio.
Nxasana says of the legal opinion: “The fact that they misled the court and were prepared to lie under oath not only indicates a strong prima facie case of serious misconduct but also casts grave doubt on their fitness to hold office”.
Armed with this opinion, he approached Justice Minister Michael Masutha, asking that President Jacob Zuma suspend the three officials pending an internal process and criminal investigations. He also wanted the General Council of the Bar to look into their continued membership of the legal profession.
Furthermore, the minister would also tell Zuma that, due to the seniority of the three individuals, an outside committee – in this case headed by retired Constitutional Court Justice Zak Yacoob – would conduct the investigation.
According to Nxasana’s report, by September Masutha had still not informed Zuma about developments at the NPA. He says after realising that “failure to bring these serious matters to the attention of the president [was] causing a credibility crisis to the NPA as whole”, he wrote to the head of state and personally delivered the letter to him. Nxasana updated Masutha about the goings-on at the NPA and about his direct letter to Zuma during September. He asked him to speak to President Zuma about the proposed suspensions “as a matter of urgency”.
Time passed. Nothing happened. The president did not respond. Masutha did not respond.
In the meantime, the Yacoob committee finished its work, the general council applied to the high court to have the three removed or suspended from the advocates’ roll, Jiba’s criminal case began and perjury charges were laid against all three.
Nxasana writes: “In spite of the abovementioned urgent requests directed to the minister and the president and the outstanding criminal proceedings against advocates Jiba, Mrwebi and Mzinyathi, no feedback has been received from the minister or the president.”
He ends off by stating: “It is important for the minister and the president to fulfil their constitutional mandate and act as a matter of urgency.” Nxasana signed off on his report at the end of May. By June 1, he had been enticed out of office – with a R17 million handshake.
NPA veteran Shaun Abrahams now sits in Mrwebi’s former office. Down the corridor are Jiba, Mrwebi and Mzinyathi – the paragons of integrity who must help him prosecute “without fear, favour and prejudice”.
Indications are that Masutha and President Zuma have not the slightest intention of doing anything about the fact that this institution is in the hands of people about whom the courts have said the most vicious things.
It’s sickening. They started ahead of the whole Chief Executive Poverty Porn SleepOut nonsense