National Prosecuting Authority boss Shaun Abrahams is facing renewed pressure after a damning judgment saw his second-in-command, Nomgcobo Jiba, scrapped from the roll of advocates.
In the judgment handed down in the Pretoria high court on Thursday, Jiba and the NPA’s special director, Lawrence Mrwebi, were found to have acted in bad faith regarding their decision to defend the withdrawal of charges against suspended crime intelligence head Richard Mdluli.
Judges Francis Legodi and Wendy Hughes concurred with the contention of the General Council of the Bar of South Africa (GCB) that Jiba, the deputy national director of public prosecutions, and Mrwebi are not “fit and proper” for their jobs.
But the judges did not agree that Sibongile Mzinyathi, the director of public prosecutions for North Gauteng, should also be removed from the roll of advocates.
Jiba will appeal the decision, said her lawyer Zola Majavu.
“I can confirm that I discussed this matter with my client and have written instructions. She will appeal the matter. We have started the process and is at this moment busy drafting. She respects the judiciary and respects the decisions of the court. We hope to file in the next 14 days,” said Majavu.
The general council’s case concerns their defence of the “sinking ship”, which was the Mdluli case; the “spy tapes” matter relating to the dropping of corruption charges against President Jacob Zuma; and the case of suspended KwaZulu-Natal Hawks head Johan Booysen over the alleged Cato Manor “death squad”.
The judges found no mala fide or ulterior motives in the actions of Jiba or Mrwebi relating to the spy tapes or Cato Manor matters.
But the judges were concerned about Jiba’s “washing of hands in dealing with the complaints against her”. She deliberately misled the court, was unwilling to “concede anything” and persisted in avoiding important issues put to her.
But her biggest sin seems to be when she fired three consecutive sets of independent counsel, who had all advised her to reinstate criminal charges against Mdluli.
Legodi, who wrote the judgment, said: “I can’t believe that [Jiba and Mrwebi] would stoop so low for the protection and defence of [Mdluli].”
They should have “stood firm and vigorous on the ground by persisting to prosecute [Mdluli] on fraud and corruption charges”.
“This kind of behaviour diminishes the image of the country and its institutions, which are meant to be impartial and independent.”
The Mdluli matter is now on Abrahams’s table, awaiting a decision on whether to recharge the suspended spook.
Several prosecutors in the NPA said he may find himself in hot water if the decision to prosecute Mdluli is delayed any longer.
NPA spokesperson Luvuyo Mfaku said the NPA will study the judgment before commenting.
The judgment also puts the NPA in a difficult position. Jiba has effective oversight of all prosecutions and it is untenable for her and Mrwebi to continue to hold their positions after the judgment.
Section 9 of the National Prosecuting Act states that a person in Jiba’s and Mrwebi’s position must be “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned”.
Now a case can be made that neither of them is fit and proper for their positions.
Former prosecutor and now Democratic Alliance MP Glynnis Breytenbach was involved in the prosecution of Mdluli and fought to get charges against him reinstated.
She has always contended that she was forced out of the NPA because of her stand against Mdluli.
Breytenbach said on Thursday that Zuma “must fire Jiba without delay” for failing to be a fit and proper person as described in section 9 of the NPA Act. “This is not the first time that this close ally has been slated by South Africa’s judiciary and the president must give effect to this commitment to the rule of law and act to remove Ms Jiba from our prosecuting authority if we are to start taking steps to restoring integrity to the NPA.”