Minister of Justice and Correctional Services Michael Masutha.
NEWS ANALYSIS
The political dust has not settled in the shaky National Prosecutions Authority (NPA). Justice Minister Mike Masutha now faces the dilemma of what to do about the remaining controversial prosecution managers.
The fate of the deputy national director of public prosecutions (NDPP), Nomgcobo Jiba, and the head of the specialised commercial crimes unit, Lawrence Mrwebi, could be sealed by the courts – unless President Jacob Zuma decides to haul them before an inquiry.
The power to appoint, suspend and establish an inquiry into the fitness of the national director of public prosecutions and national deputies is vested in the president, although it is subject to a nod from Parliament.
Masutha appears to be trying to clean up the mess caused by Zuma’s decision to hold, delay and then terminate an inquiry into the outgoing prosecutions chief, Mxolisi Nxasana.
Since then, the president has reached a settlement with Nxasana, the fourth national director to leave without finishing a term.
No peace
But the departure of Nxasana with a R17-million handshake has brought no peace to the unstable NPA because the continued presence of Jiba and Mrwebi has caused consternation within the agency and the legal fraternity.
They are facing serious allegations and questions about their fitness to hold office.
In an attempt to stabilise the NPA, Masutha is hoping that the high court, and subsequently Zuma, will act against Jiba, who is facing criminal charges and an application against her fitness to remain an advocate.
Following a fortnight of drama and the inexplicable departure of Nxasana after a protracted battle with Zuma, Masutha told the Mail & Guardian he had passed a request on to Zuma for an inquiry into Jiba’s and Mrwebi’s fitness to hold office.
“We have said to the president a request has been received by myself from the previous NDPP – in fact [from] the acting NDPP, Willie Hofmeyr, at the time, on the occasion that he was acting on behalf of Mr Nxasana. And we forwarded that request to the president,” he said.
Two requests
This means Zuma is sitting with two requests, one from Nxasana and one from Hofmeyr, and the result of an investigation that was headed by Justice Zak Yacoob into the turmoil in the NPA.
Yacoob’s findings about Jiba and Mrwebi were damning.
The M&G reported last year that the report confirmed previous criticism by the courts about Jiba’s and Mrwebi’s roles in the decision to withdraw fraud and corruption charges against the controversial crime intelligence boss, Richard Mdluli.
But Zuma has failed to deal with the Yacoob report, partly because, in terms of the Constitution, he is the only one who can launch an inquiry into the conduct of top officials.
Masutha seemed concerned about the criminal case against Jiba and a high court application by the General Council of the Bar to have her, Mrwebi and Sibongile Mzinyathi, the North Gauteng director of public prosecutions, struck off the roll of advocates.
“These are very serious matters,” Masutha said.
Courts or Zuma
But it does seem that he would like the courts to decide their fate or, alternatively, for Zuma to use the outcome as grounds to decide whether to enquire into their fitness to hold office or not.
Masutha said, although there were the requests for an inquiry, the president could still wait for the outcome of the cases.
“We told the president that there is a criminal case and a case with the General Bar Council, and the president can wait for those outcomes in deciding what happens to that second layer of leadership,” he said.
The chairperson of the Bar Council, Jeremy Muller, said it would still be a while before the matter was finalised.
Jiba is expected to appear in court on Wednesday on charges of fraud and perjury regarding the failed prosecution of the KwaZulu-Natal Hawks head, Johan Booysen.
Serious flaws
Jiba has denied the charges and her lawyer, Zola Majavu, said they would convince the court that there were serious flaws in the serving of the summons on Jiba.
“We will tell the court that the investigating officer on the case was in Cape Town with the docket and question how the summons was issued by the clerk of the court without [the docket] … and, if the court agrees, the matter will be thrown out,” he said.
But Majavu said Jiba was ready for the trial to clear her name.
She is engaged in another legal battle, in the face of the Bar Council’s application, trying to convince the court that she is still fit to remain an advocate.
If struck off the roll, the consequences for her career are dire.
Constitutional requirements
Like her predecessor, Menzi Simelane, an unfavourable outcome could be used to question her fitness and properness to hold office in the NPA, requirements in both the Constitution and the NPA Act.
Another requirement for the national director and national deputy directors is for them to be able to practise and appear in any court, including the high court, in the country. An advocate cannot appear in court if struck off the roll.
The Bar Council argues in court papers that Jiba, Mrwebi and Mzinyathi were severely criticised by judges for decisions made in three separate matters and should be disbarred.
In her opposing affidavit, Jiba pinned the blame for all the accusations she faces regarding the Booysen case on Nxasana.
But Nxasana’s lawyer, Busani Mabunda, speaking out this week following his client’s resignation, denied her accusation that the prosecution had a firm case against Booysen but it was blocked by Nxasana.
No condition
It was widely reported that Nxasana would not step down unless Jiba and Mrwebi also left, but Mabunda insisted that, when Nxasana was negotiating his departure from the NPA with Zuma, Jiba and Mrwebi did not feature.
“I wish to make this point clear. At no stage during the engagement [with Zuma] did [my] client demand as a condition that Ms Jiba and Mr Mrwebi vacate their respective offices.”
He said the memorandum that Nxasana sent to the president asking him to suspend the two was part of his duties as the national director.
No love was lost between Nxasana and Jiba from the time he was appointed, and their relationship was further strained when Nxasana reinstated charges against Mdluli.
Jiba was part of the team that withdrew the charges.
At first, Nxasana was not given a top security clearance, apparently because he failed to disclose previous criminal cases, including a charge of murder when he was a minor, although he was acquitted.