National Director of Public Prosecutions Mxolisi Nxasana.
The latest victim in the dirty and debilitating war within the National Prosecuting Authority is its head of security, Tshilidzi Ramahana, who faces suspension for allegedly refusing to become the fall guy for prosecutions boss Mxolisi Nxasana in the saga around the latter’s security clearance.
Nxasana was refused security clearance by the State Security Agency for not disclosing, among other things, that he had killed a man when he was 18.
The NPA continues to be riven by factionalism between those aligned to President Jacob Zuma’s allies and those against. In the one corner is national director of public prosecutions Nxasana, who at the time of going to print was also facing a suspension – in his case, by Zuma.
In the opposite corner to Nxasana is his controversial deputy, Nomgcobo Jiba, who has apparently refused to give her boss politically sensitive files, including the dossier on the criminal case against controversial suspended crime intelligence boss Richard Mdluli.
Zuma appointed Nxasana, but – according to sources – has felt threatened by his alignment with the “wrong faction”. The president can suspend the prosecutions boss pending an inquiry.
Fall guy fears
NPA chief of security Ramahana is now fighting for his job, fearing that he might become the fall guy for the prosecutions boss.
Ramahana was notified of an intention to suspend him on Tuesday by the NPA’s chief executive, Karen van Rensburg, who accused him of “gross insubordination and gross misconduct”. Ramahana has apparently refused to take full responsibility for Nxasana’s failure to disclose a murder he was acquitted of 29 years ago.
Ramahana responded by writing a letter to defend himself, a copy of which the Mail & Guardian has seen. According to his letter of defence, Ramahana has refused Van Rensburg’s instruction to write to Zuma and Justice Minister Mike Masutha exonerating Mxasana.
Advocate Nomgcobo Jiba is seemingly at odds with new prosecutions head Mxolisi Nxasana. (Gallo)
According to Ramahana’s letter, he has also refused to provide the chief executive with a list of NPA executives’ security and vetting statuses, which could have probably shown that Nxasana was unfairly targeted.
“It is not within my capacity, administratively and otherwise, to write to the president and the minister regarding this matter, especially since it has been widely reported that the minister of justice and the president are attending to this matter,” Ramahana said in his letter.
Uneasiness
He also expressed uneasiness at writing to Zuma and taking responsibility for Nxasana’s security clearance problems.
“My further apprehension is that you [Van Rensburg] had already indicated to us in a meeting held on May 23 2014 that you find it odd that [Nxasana’s] fitness to hold the office is being challenged on the basis of alleged crimes he committed many years ago, whereas the very same president of the country was charged for rape and corruption, but his fitness to hold the office is not challenged.
“Accordingly, you have taken a position in this matter regarding [Nxasana’s] clearance and mobilising everybody to support your position, and I think this is a matter of personal choice and principle,” Ramahana said.
Ramahana refused to speak to the M&G on Thursday, saying he had “no comment. I don’t know anything about that.”
On Thursday, Van Rensburg told the M&G that she had requested advice on Nxasana’s vetting and security clearance from Ramahana as the head of security in the NPA.
“His response was that in terms of the provisions of chapter 5 of the minimum information security standards, there is no requirement for presidential appointments to undergo security clearance … [he] will not be vetted, unless the president so requests or the relevant contract so provides.
“On the basis of this advice, the chief executive requested him to prepare a memo with his professional opinion, so that she could forward it for the attention of the minister of justice. Mr Ramahana refused to prepare the memo for the chief executive.”
Security clearance status
Van Rensburg also confirmed that Ramahana was “requested to provide a list of all high-level appointments in the organisation and the status of their security clearance, an instruction that he also refused”.
“It is on this basis that the process of his suspension was started, as this clearly constitutes gross insubordination, which is a disciplinary matter.
“The chief executive, as the accounting officer with delegated powers from the director general of justice, has the responsibility for governance in the organisation.
“There are no sides, as she is required to provide advice and take decisions that are in the best interest of the organisation, in accordance with the law and government rules and regulations. The suggestion that she is taking any sides in the matter therefore has no basis,” Van Rensburg said.
The M&G reported last week that Nxasana was asked by former justice minister Jeff Radebe to resign because his security clearance was denied, for not disclosing that he had killed a man in 1985.
Nxasana was acquitted of the murder charge, citing self-defence. However, he did disclose assault charges against him.
‘Colourful’ revelation
This week there was yet another revelation about Nxasana’s “colourful” past, but this latest revelation is seen as an attempt by the Jiba faction to destroy Nxasana and recapture control of the NPA.
For more than a decade, the NPA has been entangled in leadership crises, primarily as a result of politicians’ attempts to meddle in prosecutions. In the eye of the storm is whether to prosecute or not to prosecute Zuma and those aligned to him, such as Mdluli.
After taking office in October last year, Nxasana said he repeatedly requested a formal handover of all case files, including Mdluli’s. But he claimed he did not receive any case files from Jiba.
“Although I did not mention the names of the files, I did send her [Jiba] an email, requesting her to hand over all the files, and her response was that there were no files that she was handling,” Nxasana told the M&G on Wednesday.
Extracts from the letter written by the NPA security boss, defending himself against accusations that he failed to properly vet Nxasana.
Yet Nxasana said it transpired that Jiba was still actively involved with the prosecutions team in the Mdluli case, and with the appointment of counsel.
“I’ve never had sight of the files in this case [Mdluli],” Nxasana said. “I know she [Jiba] was getting things from the prosecutors that were dealing with the matter. That is after I had even asked her to give me any matters that she may still be handling.”
Ticking clock
He is acutely aware the clock is ticking for him to make a decision on whether to reinstate murder charges against Mdluli. As the new incumbent, it fell on Nxasana to decide whether to reinstate any of these charges within two months, as ruled by the Supreme Court of Appeal in April.
The case involved the 1999 killing of Oupa Ramogibe, and Nxasana is expected to announce his decision on whether or not he will reinstate murder charges against Mdluli in less than a month, although he has had no sighting of the case files.
Yet Nxasana said he cannot begin making a ruling, as he has still not seen the case files.
“With all the uncertainty about me, whether I am going to be suspended or whether I am not going to be suspended, I now find myself in a very difficult position.”
When Jiba was asked why there was no official handover of the case files to Nxasana, she said: “Please call me after some time as I am not sure I should be talking about this. Please call me back in 15 minutes.” When contacted again for comment, an assistant answered her phone and said she was in a meeting.
Finally, Jiba said: “In the NPA, we deal with dockets, which come to the [prosecutions head] for various reasons and are returned back to the directors of public prosecutions once finalised.”
Criminal charges
The Mdluli investigation followed an appeal launched when Freedom Under Law took the NPA to court when it dropped fraud, corruption and murder charges against Mdluli.
Judge John Murphy granted orders setting aside these decisions, and reinstated all criminal charges against Mdluli. Appeal court Judge Friz Brand found that all decisions by the prosecutions boss were reviewable on the grounds of irrationality, and if he failed to act in accordance with the rules.
Who will get to make this decision is still in the balance.
Mdluli’s lawyer, Ike Motloung, said his client is not back at work and is currently weighing up his options. “We are not waiting for the [prosecutions boss] to decide whether to reinstate charges,” he said. “Those murder charges would not stand up to the flimsiest of tests. We did an inquest hearing and every possible witness was called. Those charges are dead.”
Jiba was appointed deputy national director of public prosecutions in January 2011, and later made acting prosecutions head after the Supreme Court of Appeal found Zuma’s appointment of Menzi Simelane “irrational” and “unconstitutional”.
In 2012, Zuma expunged the criminal record of Jiba’s husband, former lawyer Booker Nhantsi, who served time in jail for stealing a client’s money from his trust fund.