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 amaBhungane on 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.
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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.
Mrwebi told 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. As Glynnis Breytenbach’s former boss, Mrwebi has been a regular feature of the highly publicised power struggles being fought within the NPA.
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 NPA.
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 it.”
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 Zuma had 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 institution.
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 unprofessional conduct”.
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 Selebi.
The terms of reference of the Yacoob committee are wide enough to encompass Mokotedi’s claims.
Mrwebi meanwhile told amaBhungane that he would “welcome” an inquiry into his fitness for his job.
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.
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 against Mdluli.
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.
Murphy was 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.”
In its 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.
The SCA 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…”
The case 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’.
Earlier this year however, Nxasana abandoned an NPA appeal of a February KwaZulu-Natal High Court ruling, which set aside all charges against Booysen.
Jiba 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”.
Judge 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.