The NPA’s un­holy trin­ity D

CityPress - - Voices - Mondli Makhanya voices@ city­press. co. za

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

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