When national director of public prosecutions Shaun Abrahams dropped the perjury and fraud charges brought against deputy national director of public prosecutions Nomgcobo Jiba by his ousted predecessor, Mxolisi Nxasana, he knew he was courting controversy.
Abrahams was aware that the General Council of the Bar of South Africa was forging ahead with its court case to strike Jiba off the advocate’s roll or, alternatively, to bar her from practising as an advocate. Instead in August he quietly promoted Jiba to one of the most powerful positions at the National Prosecuting Authority.
Jiba is heading the National Prosecution Service, which was expanded under her watch to incorporate the specialist prosecution units, including the Specialised Commercial Crimes Unit and the Priority Crime Litigation Unit. Yet Jiba will soon find herself fighting for her career in two separate court cases.
Last month the Democratic Alliance launched fresh court proceedings to set aside President Jacob Zuma’s decision not to suspend Jiba. The party is seeking to have her suspended, pending an inquiry into her fitness for office.
And, in three weeks, a meeting will be held to decide a date for the matter brought by the Bar Council against her and two others, to be heard in the high court in Pretoria next year. Not only does the council have Jiba in its sights, it also wants the head of the Specialised Commercial Crimes Unit, Lawrence Mrwebi, and the North Gauteng director of public prosecutions, Sibongile Mzinyathi, struck off the advocate’s roll or barred from practising as advocates. The three senior NPA figures have opposed the claims brought against them.
In court papers, Jiba maintains that, to strike her name from the roll of advocates, the council has first to make a finding that she is not a fit and proper person to continue to practise as an advocate.
In his replying affidavit, the council’s chairperson, Jeremy Muller, says there is no requirement in section 7(2) of the Admission of Advocates Act for a disciplinary inquiry to precede an application like this, especially as Jiba was not a member of the General Council of the Bar, or one of its constituent Bars.
Muller claims Jiba’s suggestion that the application is based on hearsay is incorrect and is denied.
“The first respondent’s suggestion that the application is ‘mischievous and … designed to embarrass me’ is unfortunate and unfounded,” he says.
The council has weighed in on three cases Jiba dealt with when she was the acting national director of public prosecutions:
- The Freedom Under Law challenge to the NPA decision to drop charges of murder and kidnapping, and fraud and corruption against suspended crime intelligence chief Richard Mdluli. Among the many issues raised by the council is that Jiba ignored a 2010 memorandum from then senior director of public prosecutions, advocate Glynnis Breytenbach and advocate Jan Ferreira, which contended that Mrwebi’s decision to withdraw the Mdluli cases was “erroneous and in law illegal”. Jiba states in her answering affidavit she had placed reliance on memos supplied to her by two other advocates, and had not considered the memo from a person (Breytenbach) “not considered relevant”.
- The attempts to prosecute the head of the KwaZulu-Natal Hawks, Johan Booysen. Jiba’s actions in this case were condemned by Judge Trevor Gorven, who granted Booysen’s application to have the charges set aside in the high court in Durban. This led to Nxasana laying fraud and perjury charges against Jiba. In his replying affidavit, Muller says Jiba “failed to engage” with the criticisms by the judge. “It will be submitted that the first respondent’s [Jiba] version is false to the extent that she professes to believe that there was and is still a strong case against Booysen, based on the evidence that is contained in the docket,” Muller contends.
- Jiba and the DA spy tapes case. During the DA application to get access to the spy tapes, which led to the withdrawal of more than 700 corruption charges against Zuma, Jiba was given a dressing-down in a Supreme Court of Appeal (SCA) ruling. It described her opposing affidavit as “generalised, hearsay and almost meaningless terms”. In his replying affidavit, Muller claims Jiba had not engaged properly with the serious criticism expressed by the SCA, and had shown no interest in being of assistance to the court in this case. “For the rest, she simply repeats the facts which gave rise to these criticisms, and suggests that it resulted from a ‘cautious approach’ adopted by her,” says Muller.
Jiba could not be reached for comment.
As the legal battles loom large, staff at the embattled NPA are left wondering whether another power struggle for control has started.