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Sally Evans & Sam Sole
01 Aug 2014 15:07
Lawrence Mrwebi. (Madelene Cronje)
In the latest move in the high stakes battle between the country’s most senior prosecutors, the National Prosecuting Authority has
decided to charge Lawrence Mrwebi, the controversial head of the NPA’s
specialised commercial crimes unit.
The prosecuting authority confirmed to
Thursday that Mrwebi – the man responsible for the withdrawal of corruption
charges against former crime intelligence boss Richard Mdluli – is officially
facing prosecution after the decision was taken last week. The NPA said the
docket was opened in February last year.
The charges against Mrwebi relate to a case in which
he both allegedly interfered and had a conflict of interest.
The NPA would not confirm the exact charges, as Mrwebi
has not yet appeared in court, but it did confirm his case is linked to an
investigation into the awarding of a 2006 NPA security contract.
amaBhungane that he had no idea of the
pending prosecution against him, although the NPA said it had informed him.
AmaBhungane has previously reported on Mrwebi’s
alleged attempts in December 2011 to interfere with a search and seizure
operation being carried by the Hawks at the home of one of his colleagues and
friends, Terence Joubert.
Joubert worked for the NPA’s security and risk
management unit in KwaZulu-Natal.
Regular feature in power struggles
But criminal charges are not the only thing Mrwebi
might need to gear up for.
These appear to have gained momentum since August last
year, when president Jacob Zuma appointed KwaZulu-Natal lawyer Mxolisi Nxasana
as the national director of public prosecutions (NDPP). Zuma was forced, by
court order, to appoint a permanent NPA head as it had been without one for
almost two years.
The appointment of the then relatively unknown Nxasana
seemingly caused waves at the prosecuting authority’s Silverton head office.
Nxasana replaced Nomgcobo Jiba after she had been acting head for 18 months.
Jiba, another prominent official whose name has
appeared in the media alongside allegations relating to the NPA’s internal
machinations, has a history with both Mrwebi and Mdluli, that began in 2007
when the two men vouched for her during a Labour Court fight she had with the
And it appears the three might again find themselves
having to defend their corner.
AmaBhungane learnt this week that a memo, sent from
the NDPP’s office on Tuesday to justice minister Michael Masutha, recommended
that an inquiry into Nxasana’s fitness to hold office be expanded to include
scrutinising the suitability of Mrwebi and Jiba.
Jiba and Mrwebi have been at the centre of the battle
over the withdrawal of charges against Mdluli and have received judicial rebuke
for their actions.
Although both Jiba and Mrwebi denied any knowledge of
the request to the justice minister, justice spokesman Mthunzi Mhaga told
amaBhungane yesterday: “I can confirm that indeed the Minister has received
correspondence from Acting NDPP Willie Hofmeyr on 29 July 2014. He is studying
same but we are not at liberty to give more details as he is still studying
And in response to whether a request had been put to
Masutha regarding an inquiry into Jiba and Mrwebi, NPA spokeswoman Bulelwa
Makeke said: “We do not wish to comment on this matter as we regard it as an
internal matter. Save to say there are recommendations that have been referred
to the Minister of Justice and Correctional Services”.
The Presidency announced on Friday that
written to Nxasana
, informing him that details of the inquiry into his fitness
to hold office were still being finalised and giving him an opportunity to make
representations as to why the President should not suspend him.
Zuma first announced the inquiry nearly a month ago. It followed allegations that Nxasana was refused top
security clearance after he failed to disclose that he had killed a man when he
was 18. He was acquitted for acting in self-defence. But there were also a
series of media leaks about other allegations of aggressive behavior.
Meanwhile the NPA has also announced the appointment
of an external “fact-finding committee”, led by retired Constitutional Court
judge Zac Yacoob to look into the allegations and counter-allegations plaguing
The committee will probe “the involvement of
employees, including senior members, of the NPA in the leaking of information
to the media and other interested parties as well as other unethical and
The terms of reference for the committee suggest it
will also probe the behavior of Mrwebi and Jiba – as well as the allegations
and counter-allegations involving their perceived ally, Prince Mokotedi.
Suspicion of leaking
Mokotedi, the head of the NPA’s Integrity Management
Unit, was suspended last month in connection with the suspicion that he leaked
a document detailing the findings of an IMU investigation of former specialised
commercial crime prosecutor Glynnis Breytenbach.
Breytenbach was central to the battle with Jiba and
Mdluli over fraud charges her specialized commercial crime unit sought to bring
against Mdluli, and successfully defended disciplinary charges brought against
her by Jiba last year.
Mokotedi led an investigation into new and damaging conflict of interest claims against her, but his internal report - the one later leaked - coincided with her resignation from the NPA. She left the prosecution service to join the Democratic Alliance and is now an MP.
Mokotedi this week embarked on a media campaign ahead
of his own resignation – slated for yesterday – in which he claimed that the
NPA was divided along pro-Zuma and anti-Zuma lines.
He dubbed the anti-Zuma faction as the “Zille faction”
and claimed it included acting NDPP Willy Hofmeyr as well as the team led by
Gerrie Nel that investigated and prosecuted former police commissioner Jackie
The terms of reference of the Yacoob committee are
wide enough to encompass Mokotedi’s claims.
amaBhungane that he would “welcome” an inquiry into his fitness for his
Inquiry a blessing
He said: “If I was
speaking for myself, I would say that it is a blessing (to have an inquiry) so
that all these rumours could be put to rest. I would not be against that. I
would welcome an inquiry into me – to find out where does it come from, that I
am part of a faction. What did I do? And to find out what the facts are.” Jiba
did not want to comment.
AmaBhungane has been reliably informed that issues
raised as being of concern to the NDPP’s office relate to Jiba and Mrwebi’s
roles and decisions during several highly publicised cases.
These include the so-called Cato Manor “hit squad”
case and the subsequent suspension of KwaZulu-Natal Hawks boss Johan Booysen as
well as the legal battles over the withdrawal of criminal charges against
Mdluli is set to appear in court August 11 to face
charges relating to the kidnapping of Oupa Ramogibe, although he will not face
charges relating to Ramogibe’s murder.
A senior NPA
source, who asked not to be named, told
amaBhungane that the issues central to
Mrwebi would relate to the scathing findings of high court Judge John Murphy,
in his ruling last September on an application brought by lobby group Freedom
Under Law (FUL) to force the police and the NPA to reinstate criminal charges
Among the issues raised by FUL in its case, which it later won,
was whether Mrwebi followed a transparent and legal process in deciding to
withdraw corruption and fraud charges against Mdluli.
severe on this particular matter. “The conduct of the Special DPP [Mrwebi], again, I
regret, as evidenced by this behaviour, falls troubling below the standard
expected from a senior officer of this court.”
Murphy also found that Mrwebi’s decision to withdraw
Mdluli’s charges was “illegal, irrational, based on irrelevant considerations
and material errors of law, and ultimately so unreasonable that no reasonable
prosecutor could have taken it.”
No holding back
Mrwebi claimed at the time that after he had received
representations from Mdluli’s lawyers, at the end of 2011, the investigation
needed to be handled by the inspector general of intelligence. He informed
Mdluli’s lawyers that the charges would be withdrawn before he had consulted
the prosecutors in the matter.
Judge Murphy did not hold back either when it came to Jiba’s
behaviour, the NPA’s acting head at the time. Murphy found that her and
Mrwebi’s conduct was “unbecoming of persons of such high rank in the public service … The
attitude of the respondents signals a troubling lack of appreciation of the
constitutional ethos and principles underpinning the offices they hold.”
And in a
final hammer blow, Murphy found that “the NDPP and the DPPs have not
demonstrated exemplary devotion to the independence of their offices, or the
expected capacity to pursue this matter without fear or favour … Further
prevarication will lead only to public disquiet and suspicion that those
entrusted with the constitutional duty to prosecute are not equal to the task.”
judgement this year, on an appeal brought against Murphy’s ruling by the
police, Mdluli and the NPA, the Supreme Court of Appeal agreed with Murphy’s
findings with regards to Mrwebi’s actions in withdrawing the charges.
judgement noted, among other points, that: “The only inference is thus that
Mrwebi’s decision was not in accordance with the dictates of the empowering
statute on which it was based…”
that could potentially cause the most damage to Jiba is the arrest and
prosecution of members of the now-disbanded Cato Manor violent crimes police unit
in 2011, following a front-page article in the
Sunday Times. The
newspaper reported that the unit, under former Hawks boss Johan Booysen’s
watch, had been acting as a ‘hit squad’.
this year however, Nxasana abandoned an NPA appeal of a February KwaZulu-Natal
High Court ruling, which set aside all charges against Booysen.
came under fire in the court’s ruling. She was effectively accused of being
untruthful in claiming her decision to approve Booysen’s charges was
based on “sworn evidence”.
Trevor Gorven noted: “In response to Mr Booysen’s assertion of mendacity on
her part, there is a deafening silence. In such circumstances, the court is
entitled to draw an inference adverse to the NDPP.”
Dismissing her decision he added: “I can conceive of no test for
rationality, however relaxed, which could be satisfied by her explanation. The
impugned decisions were arbitrary, offend the principle of legality and,
therefore, the rule of law and were unconstitutional.”
In the original wording of this story it was suggested that Adv Glynnis Breytenbach had reached a settlement with the NPA on her departure that included a commitment not to pursue new allegations against her delivered in a report by the NPA’s Integrity Management Unit. Breytenbach has indicated that she would not have and did not in fact reach any settlement that would preclude the NPA acting on those allegations, if justified. The settlement related only to outstanding labour litigation that arose from the NPA’s earlier disciplinary action against her in which she was found not guilty. amaBhungane regrets the error.
The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.
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