Fi­nally Jiba must face the mu­sic

Without po­lit­i­cal pro­tec­tion, she and her NPA col­league Lawrence Mr­webi will have their fit­ness to hold of­fice tested

Mail & Guardian - - News - Franny Rabkin

Pres­i­dent Cyril Ramaphosa’s an­nounce­ment on Wed­nes­day that he will in­sti­tute an in­quiry into deputy pros­e­cu­tions head Nomg­cobo Jiba’s fit­ness for of­fice sig­ni­fies the end of the po­lit­i­cal pro­tec­tion she has been af­forded for years, de­spite scathing crit­i­cism of her in a num­ber of court judg­ments since 2013.

Ramaphosa an­nounced that Jiba and spe­cial di­rec­tor of pub­lic pros­e­cu­tions Lawrence Mr­webi had been given un­til Au­gust 10 to tell him why they should not be sus­pended, pend­ing in­quiries un­der the Na­tional Prose­cut­ing Author­ity (NPA) Act, which could pave the way for their re­moval.

Yet a num­ber of steps must be fol­lowed be­fore they could be re­moved. Un­der the Act, the four deputies to the na­tional di­rec­tor and spe­cial di­rec­tors are ap­pointed by the pres­i­dent but the pres­i­dent may not re­move them. There must be an in­quiry into their fit­ness for of­fice and ul­ti­mately it will be for Par­lia­ment to de­cide. The idea is to en­sure a mea­sure of in­de­pen­dence for the NPA’s top de­ci­sion-mak­ers.

In his an­nounce­ment, Ramaphosa said the “al­le­ga­tions made in ... var­i­ous judg­ments have been in the pub­lic do­main many years now”.

He was re­fer­ring to the re­bukes of Jiba and Mr­webi from high court judges and jus­tices of the Supreme Court of Ap­peal (SCA) in sev­eral high-pro­file and po­lit­i­cally sen­si­tive cases. These were the pros­e­cu­tion of for­mer KwaZulu-Natal Hawks head Jo­han Booy­sen, the lit­i­ga­tion over the drop­ping of charges against for­mer crime in­tel­li­gence head Richard Md­luli and the marathon bat­tle over the “spy tapes” — the record­ings of phone con­ver­sa­tions that were used to drop cor­rup­tion charges against for­mer pres­i­dent Ja­cob Zuma.

Gaut­eng’s high court Judge John Mur­phy said their con­duct in the Md­luli ap­pli­ca­tion was “un­be­com­ing of per­sons of such high rank in the pub­lic ser­vice”. In the Booy­sen de­ci­sion, KwaZulu-Natal high court Judge Trevor Gor­ven said Jiba had re­sponded to an ac­cu­sa­tion of men­dac­ity with “deaf­en­ing si­lence”. And SCA Jus­tice Ma­homed Navsa said Jiba’s con­duct in the spy tapes lit­i­ga­tion was “not wor­thy of the of­fice of NDPP [na­tional di­rec­tor of pub­lic pros­e­cu­tions]”.

Ramaphosa said these pro­nounce­ments had “neg­a­tively tainted the im­age of the NPA and will con­tinue to do so un­til fully ven­ti­lated and ad­dressed”.

Un­til now, and de­spite the best ef­forts of the for­mer na­tional di­rec­tor, Mx­olisi Nx­as­ana, Jiba tena­ciously hung on to power, ap­par­ently backed by Zuma. When Nx­as­ana ap­pealed to Zuma to suspend her, the plea was dis­re­garded. When he charged her with per­jury and fraud for the Booy­sen mat­ter, the axe fell on him and he was re­placed by Shaun Abra­hams.

Jiba has also so far sur­vived three sep­a­rate court cases that would have seen her lose her po­si­tion — by the Demo­cratic Al­liance, Free­dom Un­der Law and the Gen­eral Coun­cil of the Bar.

The DA’s case was re­jected in the Western Cape high court. The Bar, which sought to have her struck from the roll of ad­vo­cates, won in the high court but this was re­versed by the Supreme Court of Ap­peal. The Bar is now seek­ing to ap­peal the SCA judg­ment in the Con­sti­tu­tional Court, al­though its de­ci­sion to do so is not sup­ported by Ad­vo­cates for Trans­for­ma­tion, lead­ing to an ugly and pub­lic dis­pute.

Free­dom Un­der Law also won in the high court, with the court set­ting aside Zuma’s “ir­ra­tional” re­fusal to suspend Jiba and Mr­webi and es­tab­lish the in­quiries that could pave the way for their re­moval. But this was in the process of be­ing ap­pealed by Zuma when he was pres­i­dent.

Not any more. On Thurs­day, Ramaphosa with­drew the pres­i­dency’s ap­pli­ca­tion for leave to ap­peal in that case and made a new de­ci­sion, in­de­pen­dent of any court process, to es­tab­lish in­quiries into their fit­ness for of­fice.

“I can­not un­der­score the im­por­tance of the pub­lic’s trust in the NPA and its most se­nior man­age­ment … Doubt about the fit­ness and in­tegrity of any­one in so se­nior a po­si­tion as you hold jeop­ar­dises this trust and the abil­ity of the NPA as a whole,” said Ramaphosa in his let­ters to Jiba and Mr­webi.

An in­quiry un­der sec­tion 12(6) of the NPA Act may be con­structed “as the pres­i­dent deems fit”. The 2008 in­quiry into the fit­ness for of­fice of for­mer NDPP Vusi Pikoli, chaired by for­mer speaker Frene Gin­wala, was a quasi-ju­di­cial process, at which ev­i­dence was given and wit­nesses were cross-ex­am­ined.

The one that was set up for Nx­as­ana in 2015, to be chaired by se­nior coun­sel Nazeer Cas­sim, was to be sim­i­larly quasi-ju­di­cial. But on the morn­ing it was due to be­gin, Cas­sim an­nounced a set­tle­ment agree­ment had been reached.

Un­der the Act, the rec­om­men­da­tion of the in­quiry is not bind­ing on the pres­i­dent — he may re­move them ei­ther way. But his de­ci­sion must be ap­proved by Par­lia­ment. If Par­lia­ment tells him to re­verse his de­ci­sion, he must do so.

Mean­while, the case of the Gen­eral Coun­cil of the Bar about Jiba and Mwrebi’s fit­ness to be ad­vo­cates may con­tinue. The courts have made it clear that whether they are fit for of­fice in the NPA is a dif­fer­ent ques­tion to whether they are fit to be ad­vo­cates.

The SCA judg­ment said: “One may in­fer some form of in­com­pe­tence with re­gard to her du­ties, which may be a ground to re­move her from be­ing the DNDPP [al­beit] not suf­fi­cient enough to be re­moved from the roll of ad­vo­cates.”

If, how­ever, the con­sti­tu­tional court was to de­cide the two are not fit to be ad­vo­cates, it would pre­clude them from their posts at the NPA be­cause they have to have a le­gal qual­i­fi­ca­tion that al­lows them to prac­tice in court.

There is also the sep­a­rate court case re­lated to na­tional di­rec­tor Shaun Abra­hams. Judg­ment is pend­ing in the con­sti­tu­tional court on whether the NPA head was law­fully ap­pointed to his post.

Wheels of jus­tice: Nomg­cobo Jiba (above) and Lawrence Mr­webi (left), no longer pro­tected by Ja­cob Zuma, may lose their posts in the NPA — and may for­feit their sta­tus as ad­vo­cates.

Pho­tos: Oupa Nkosi & Her­man Ver­wey/Foto24/ Gallo Im­ages

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