The National Prosecutions Authority is a critical institution in our constitutional landscape. In particular, with the cancer of corruption having spread throughout our political body, the NPA is central to the implementation of the constitutional vision of governance based on transparency and probity. To be effective, it is obvious that the institution requires independent and courageous leadership.
Yet the need for such an appointment has escaped successive executives. Vusi Pikoli was too independent for then president Thabo Mbeki. Menzi Simelane, appointed by President Jacob Zuma, was manifestly unsuitable for the post. Mxolisi Nxasana, it appears, suddenly became too independent after his appointment, apparently thinking he had been appointed on merit, and was removed.
Enter Shaun Abrahams. Here is a man with a spectacularly undistinguished career as a member of the NPA when compared with seasoned prosecutors such as Willie Hofmeyr and Silas Ramaite. Thirty-nine years old, Abrahams was turbo-charged into the job of national director of public prosecutions (NDPP). He informed the public that he was “no one’s man” and that, under his stewardship, the NPA would be run in terms of the Constitution and hence without fear or favour to anyone, however politically influential.
Within a few weeks of his appointment, he gave a very clear indication of what he meant by these commitments. He announced that charges against advocate Nomgcobo Jiba were to be dropped and she would become head of prosecution services. This, however it is spun, makes her the number two person in the NPA.
Let us leave aside the merits of the decision to drop charges against Jiba and concentrate on Abrahams’s decision, in effect, to promote her. In one of the usual interregna between appointments of an NPA head, Jiba was the acting NDPP.
In this capacity she instituted a prosecution of Major General Johan Booysen of the police.
Booysen reacted to this by bringing an application to set aside Jiba’s decision, which had been based on contraventions of provisions of the Prevention of Organised Crime Act.
Booysen argued that Jiba had breached a foundational principle of legality: the requirement, in the case of a decision to prosecute, that the exercise of the power to prosecute must be rationally related to the purpose for which that power had been given.
In the course of this litigation, Booysen demanded the NPA make available all documents on which it intended to rely in order to justify its case that Booysen was implicated in murders, the alleged purpose being that he and the co-conspirator police officers under his command would benefit more from killing than arresting these individuals.
In compliance with this request, 23 dockets were made available. Of these, Booysen was only mentioned in three out of a total of 290 statements across all the dockets.
In one, it was said that Booysen claimed he arrived on the scene of a shooting in a helicopter after the event. In another, it was claimed he was seen at the scene of a shooting after it had taken place. Understandably, Booysen asserted that none of these statements implicated him.
Jiba said she had relied on four statements under oath, copies of which she said were annexed to her affidavit. In her affidavit, she said: “After due and careful consideration of the statements under oath as contained in the dockets … the respondents were and still are satisfied that there is prima facie evidence that an offence had been committed and that the applicant is implicated therein.”
That evidence, according to Jiba, indicated Booysen knew or ought to have known that police officers under his command were killing suspects instead of arresting them and that, in certain instances, these killings were “motivated by the state monetary awards and/or certificates for excellent performance”.
By the time Booysen’s application came to court, it appeared the affidavits upon which Jiba had relied had no relevance to the case. One affidavit was described as concerning “office politics”; it did not implicate Booysen in any of the offences with which he had been charged.
Another of the documents that mentioned Booysen referred to a statement by a third party that was not a sworn statement, nor was it signed by anybody else or dated.
Judge Trevor Gorven said of this evidence: “As regards to the inaccuracies, the [acting] NDPP is, after all, an officer of the court. She must be taken to know how important it is to ensure that her affidavit is entirely accurate. If it is shown to be inaccurate and thus misleading to the court, she must also know that it is important to explain and, if appropriate, correct any inaccuracies. Despite this, the invitation of Mr Booysen was not taken up by the NDPP, nor was an application to deliver a further affidavit. 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.”
This inference was that none of the information on which Jiba relied linked Booysen to any of the offences for which he had been charged and that, in effect, Jiba knew that. Jiba did not appeal this finding. Thus there is a clear judgment, by a very fine judge, that – absent of any answer from Jiba – she had not been truthful in the compilation of her affidavit and hence in the justification for the prosecution of Booysen.
Abrahams owes the nation an explanation: How can he possibly justify the retention of such a person in an influential position in the NPA, let alone give her a promotion?
Without a clear and rational reason, the public is entitled to draw an irresistible inference about Abrahams’s idea of an independent and competent NPA.