IT’S HE SAYS, SHE SAYS

Over the past six weeks, the inquiry into Nomgcobo Jiba and Lawrence Mrwebi’s fitness to hold office has, at times, devolved into a tale of victimhood. The suspended deputy national prosecutions boss and the suspended special director of public prosecutions have sought to distance themselves from the political tentacles that inveigled their way into law enforcement in SA — particularly those linked to former president Jacob Zuma.

Retired Constitutional Court justice Yvonne Mokgoro will now have to make sense of the contested narrative of disputed facts and contradictory testimony.

The inquiry has focused on the prosecutorial decisions taken by Jiba and Mrwebi — and their actions in subsequent litigation — in sensitive political cases. Specifically, the spotlight has been on the decision to drop charges of fraud against former crime intelligence boss Richard Mdluli (considered a Zuma ally); to institute racketeering charges against former Kwazulu-natal Hawks head Johan Booysen; and decisions related to the so-called spy tapes matter, in which the DA litigated to obtain access to the recordings that were at the heart of the decision to drop corruption charges against Zuma.

The way their counsel tell it, Jiba and Mrwebi have done no wrong. Rather, if mistakes were made, they were the result of legal advice taken in good faith or the result of differences of opinion.

It’s not the first time Jiba and Mrwebi’s actions have come under legal scrutiny. The Pretoria high court ruled that both should be struck from the roll of advocates for their handling of the Mdluli matter. That decision, overturned by the Supreme Court of Appeal, will be the focus of a Constitutional Court challenge on March 14. The action has been brought by the General Council of the Bar, which holds that Jiba and Mrwebi are not fit to be advocates.

Jiba has hitched her fortunes to the three supreme court judges who ruled in her favour (two supported the high court ruling). She argues that the Mdluli case and the Mokgoro inquiry are closely linked: the inquiry’s terms of reference reflect matters the Constitutional Court will consider, and the “fit and proper” standard for holding legal office is much the same as for membership of the advocates’ bar.

Freedom Under Law, the NGO instrumental in the litigation to review the Mdluli case, believes otherwise. It holds that higher standards should apply to legal office: after all, the deputies of national directors of public prosecutions (NDPPS) and special directors are appointed by the president to lead an institution that derives its power from the constitution.

To do its work, that institution has to prosecute without fear or favour. And it is on this count that the two advocates are alleged to have failed.

Over the course of almost a decade, the narrative developed that Mrwebi, with the support of Jiba (who was acting NDPP at the time) protected Mdluli as a favour to Zuma

But Mrwebi, in his written submission, said that suggestion was wide of the mark. As such, he asked that this narrative be removed from the purview of the inquiry and that he be judged instead on his actions.

But the facts surrounding those actions are themselves the subject of dispute.

Mrwebi holds that he was a principled prosecutor who fell victim to a vendetta.

This, he said, was the result of his investigation into his colleagues’ alleged abuse of a slush fund that, among other things, was used to pay informants of the then directorate of special operations (the Scorpions). This marked the start of his woes at the National Prosecuting Authority (NPA).

He disputes that his decision to drop charges against Mdluli was influenced by political considerations or the result of pressure from within the highly politicised crime intelligence unit. He told the inquiry he never meant to close the case against Mdluli, but rather to withdraw it provisionally (a decision he believes he made clear).

But the rationale underlying Mrwebi’s decision seems to have changed with time.

In a handwritten memo, he initially stated that the reason for withdrawing the charges was that the police did not have the mandate to investigate the case; that, he said, lay with the inspector-general of intelligence. Later, Mrwebi said the involvement of the inspector-general of intelligence was limited to declassifying documents; he did not intend that the police investigation be halted, but suggested that the evidence as it stood was insufficient for successful prosecution. The decision to withdraw the charges was provisional, he said, pending further investigation.

Mrwebi told Mokgoro that Breytenbach agreed with this decision — as did the director of public prosecutions in North Gauteng, Sibongile Mzinyathi, who he was supposed to consult on the matter before he took a decision. What this “consultation” involved is