Dis­barred ad­vo­cates state their case

CityPress - - News - ABRAM MASHEGO abram.mashego@city­press.co.za

The deputy na­tional di­rec­tor of pub­lic pros­e­cu­tions, Ad­vo­cate Nomg­cobo Jiba, and spe­cial di­rec­tor of pub­lic pros­e­cu­tions Ad­vo­cate Lawrence Mr­webi – both on spe­cial leave – have told Pres­i­dent Ja­cob Zuma that sus­pend­ing them would be un­law­ful.

Last month, Zuma asked the two to make rep­re­sen­ta­tions on why they should not be sus­pended, fol­low­ing a damn­ing Pre­to­ria High Court rul­ing which or­dered that they be dis­barred.

In her sub­mis­sion, Jiba in­forms the pres­i­dent of her im­pend­ing ap­pli­ca­tion to ap­peal against Judge Fran­cis Le­godi’s rul­ing.

Judge Le­godi con­curred with the Gen­eral Coun­cil of the Bar of SA that Jiba and Mr­webi were “not fit and proper” for their jobs.

This fol­lowed their de­ci­sion to drop charges against for­mer crime in­tel­li­gence head Richard Md­luli, who faced a num­ber of in­dict­ments, in­clud­ing de­fraud­ing a se­cret slush fund.

In her re­sponse to the pres­i­dent, Jiba states: “I re­spect­fully sub­mit that there are both rea­son­able prospects of suc­cess on the ap­peal, and com­pelling rea­sons the ap­peal should be heard.”

Jiba con­tests that if she is sus­pended – pend­ing an in­quiry into her fit­ness to hold of­fice – it would have “con­sti­tu­tional ram­i­fi­ca­tions for the in­de­pen­dence of the Na­tional Prose­cut­ing Au­thor­ity (NPA) as an in­sti­tu­tion and all its pros­e­cu­tors, from the Na­tional Di­rec­tor of Pub­lic Pros­e­cu­tions (NDPP) down to the pros­e­cu­tor in the low­est court of this coun­try.” She fur­ther states that if pros­e­cu­tors faced the prospect of be­ing struck off the roll for the “ex­er­cise of their pros­e­cu­to­rial dis­cre­tion, even as­sum­ing those de­ci­sions to be wrong – which is not even the case in this in­stance” – it would go against the Con­sti­tu­tion. Jiba writes that there are mech­a­nisms to deal with “wrong de­ci­sions by pros­e­cu­tors, in­clud­ing set­ting aside these de­ci­sions ei­ther on re­view or ap­peal, which has been the prac­tice in this coun­try”. Jiba who was act­ing head of pub­lic pros­e­cu­tions at the time of the Md­luli case, also states that “the de­ci­sion to pros­e­cute or not” was not the pri­mary func­tion of the NPA head. In his sub­mis­sion, Mr­webi states it is “re­gret­table that for­mer NPA boss Mx­olisi Nx­as­ana with­drew ev­ery re­port and brief­ing min­utes on the Md­luli mat­ter as he be­lieved that the Md­luli mat­ter was his best am­mu­ni­tion against me”. Mr­webi goes on to ar­gue that Nx­as­ana used “the Md­luli case to in­sti­tute trumped-up charges” against him. Mr­webi writes that the ad­vo­cates did not have enough ev­i­dence to pros­e­cute Md­luli, say­ing they sug­gested grant­ing con­victed crime in­tel­li­gence of­fi­cer Hein Barnard im­mu­nity in ex­change for his tes­ti­mony against Md­luli. But ac­cord­ing to Mrebi, Barnard re­fused to as­sist their in­ves­ti­ga­tions, leav­ing them with lack of ev­i­dence to pro­ceed with the case. Mr­webi states that he stands by his de­ci­sion: “These find­ings against Ad­vo­cate Jiba and me are base­less, un­founded and in­deed very un­for­tu­nate. The de­ci­sion I made in the Md­luli mat­ter is still the cor­rect one as it was in line with pros­e­cu­tion pol­icy and pol­icy direc­tives of the NPA.” Mr­webi also writes that he has launched an ap­peal process to re­view the rul­ing, and Zuma would be in vi­o­la­tion of the Con­sti­tu­tion if he sus­pended him while that process was on­go­ing. Nx­as­ana re­sponded to Mr­webi’s claim that he with­held cru­cial in­for­ma­tion from him as a “lie”, adding that the NPA had the sole man­date to pros­e­cute crim­i­nal mat­ters in South Africa. “[In ad­di­tion], the NDPP is­sues pros­e­cu­tion pol­icy direc­tives, which the pros­e­cu­tors must ad­here to when ex­er­cis­ing their dis­cre­tion on whether to pros­e­cute. So, it is im­per­a­tive that they be hon­est when ex­er­cis­ing this dis­cre­tion ... They [Jiba and Mr­webi] clearly abused their power and ... al­lowed their in­de­pen­dence to be in­flu­enced by out­side forces. It fol­lows that they can­not now seek refuge from the ‘in­de­pen­dence of the NPA’ when, in fact, they are the ones who ab­di­cated that in­de­pen­dence.”

Nomg­cobo Jiba

Lawrence Mr­webi

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