Following the Constitutional Court’s ruling on the fate of Shaun Abrahams, President Cyril Ramaphosa will today appoint an acting national director of public prosecutions (NDPP).
The court ruled on Monday that Abrahams’s appointment to the office of the NDPP was constitutionally invalid, thus concluding the protracted battle over the leadership of the National Prosecuting Authority.
The court ordered the president to appoint a new NDPP in the next 90 days.
On Monday, the spokesperson for the presidency, Khusela Diko, told Radio 702 that the president intends to announce the acting NDPP on Tuesday, pending necessary consultations with Justice Minister Michael Masutha.
According to the NPA Act, Ramaphosa has to appoint one of the four deputy national director of public prosecutions to the role. The current deputies are Silas Ramaite, Nomgcobo Jiba, Nomvula Mokhatla and Willie Hofmeyr.
Ramaite was appointed a deputy NDPP by then president Thabo Mbeki in 2003. He served as the acting NDPP immediately after Mxolisi Nxasana was relieved of his position and was later replaced by Abrahams.
Though Ramaite is the least visible of the deputy NDPPs up for the appointment as acting NPA head, his career has not been without scandal.
He made headlines when he was arrested for drunken driving after allegedly crashing his Jaguar into another vehicle in Limpopo in June 2011. Charges against him were later provisionally withdrawn.
Jiba was appointed as a deputy prosecutions head in 2010. She has been one of the most visible antagonists in the NPA’s leadership battles.
For now Jiba’s position as a deputy NDPP hangs in the balance, after the president’s recent announcement that he would be embarking on an investigation into her fitness to hold office.
Last Friday, Jiba, along with her colleague Lawrence Mrwebi, submitted their reasons into why they should not be suspended pending a disciplinary inquiry.
Under the NPA Act, the four deputies to the national director and special directors are appointed by the president but the president may not remove them. There must be an inquiry into their fitness for office and ultimately it will be for Parliament to decide.
Jiba was appointed a deputy director of public prosecutions in 2001 and a deputy NDPP in 2011 under the leadership of Menzi Simelane, who was previously facing charges of dishonesty, unprofessional conduct and bringing the NPA into disrepute.
Until Simelane’s predecessor, Mokotedi Mpshe, abandoned proceedings against her in late 2009, Jiba was facing internal charges arising from what appeared to be a personal and political vendetta against advocate Gerrie Nel, the former Scorpions Gauteng boss.
In December 2007 she was suspended by Mpshe, who was the acting national director, for her part in what Mpshe portrayed as a conspiracy to have Nel arrested before he could lay corruption charges against former police commissioner Jackie Selebi.
In 2011 Jiba had a brief stint as the acting head of the Special Investigating Unit under a cloud of controversy stemming from her previous suspension.
After barely a week in the job, Jiba was abruptly replaced with Nomvula Mokhatla amid reports that Justice Minister Jeff Radebe had failed to consult Zuma before naming her to the post. Radebe denied this.
In December of that year, after accepting a Supreme Court of Appeal ruling that Simelane’s appointment as NDPP was invalid, Zuma named Jiba to act in his stead. In 2012 the Constitutional Court confirmed SCA’s ruling on Simelane’s invalid appointment.
Nxasana was appointed by Zuma as the NDPP in 2013. In 2014 Nxasana wrote to Zuma asking him to suspend Jiba and Mrwebi, pending an inquiry into their fitness to hold office.
In 2015 Nxasana called an inquiry into the two, and a report compiled by retired Constitutional Court Justice Zak Yacoob confirmed previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.
The report was sent to Zuma, though he failed to act on it.
In April of that year, Jiba faced charges of perjury and fraud. The charges related to her decision to prosecute Johan Booysen, the former head of the Hawks in KwaZulu-Natal, on racketeering charges.
That August, Abrahams withdrew the charges. Last year the Pretoria high court set aside Abrahams’s decision.
In 2016, Jiba and Mrwebi were struck from the roll of advocates by the Pretoria high court, after being found to be not “fit and proper” for their jobs. They were subsequently placed on special leave by the NPA.
Jiba and Mrwebi appealed the high court’s decision in the Supreme Court of Appeal, which ruled in their favour this year. The General Council of the Bar of South Africa filed papers in the Constitutional Court in July for leave to appeal the SCA ruling.
Mokhatla was appointed a deputy NDPP at the end of 2010. Mokhatla had never worked for the NPA and had a low profile as an advocate. She previously served as a consultant for the department of justice.
In 2011, Mokhatla took over from Jiba as the acting head of the SIU following the resignation of Advocate Willem Heath. The presidency insisted that the temporary appointments of Jiba and Mokhatla were above board.
Heath had replaced Willie Hofmeyr as the unit’s head.
In her capacity as the acting head of the SIU, Mokhatla made the controversial move to reinstate Miseria Nyathi as the unit’s business support head.
Under Hofmeyr’s leadership, Nyathi was accused of wasteful expenditure and was dismissed in 2011 after refusing to undergo a lie detector test, which the Labour Court ruled was in breach of her contract.
At the time, the Mail & Guardian revealed that Mokhatla had acted against legal council by reinstalling Nyathi, though the SIU denied this.
Mokhatla also reinstated Faiek Davids as the deputy head of the SIU, after he was fired by the unit’s previous head Willie Hofmeyr.
The so-called “spy tapes” — intercepted phone calls that played a role in the withdrawal of corruption charges against Zuma — were reportedly at the heart of the labour issues between Hofmeyr and Davids.
Davids resigned soon after being re-installed by Mokhatla.
Mokhatla held the position of acting SIU head until Advocate Vas Soni was permanently appointed to the role in 2013.
After Nxasana’s termination as NDPP, it was surmised that Mokhatla might take over as the acting head of the NPA, though Ramaite was ultimately appointed.
Hofmeyr is the longest-serving of the deputy NDPPs and was appointed to the role in 2001. He was previously an ANC MP during Nelson Mandela’s presidency and served as head of the SIU from August 2001 to November 2011.
Hofmeyr also served as the head of the Asset Forfeiture Unit while at the helm of the SIU, a fact that became a bone of contention among his detractors.
In 2011, the NPA embarked on an investigation into Hofmeyr regarding the alleged misappropriation of SIU funds.
But the M&G revealed that the probe into Hofmeyr stemmed from internal disputes over transformation of the unit and later become part of a broader attack on anti-corruption efforts.
At the time, the SIU was probing 16 departments and public entities for fraud, graft and maladministration.
In 2015 Hofmeyr alleged that former national director of public prosecutions Bulelani Ngcuka — with former Scorpions boss Leonard McCarthy and former intelligence minister Ronnie Kasrils — were “part of a broader collective of Mbeki supporters who viewed the NPA as a tool to fight Mbeki’s political battles”.
Hofmeyr made the allegations in defence of the 2009 decision by the NPA to discontinue the corruption case against Zuma.
Last year the Supreme Court of Appeal rejected Zuma’s appeal in his long running battle to avoid prosecution for fraud and corruption.
Zuma and the NPA wanted the appeal court to overturn the High Court’s decision, which found that the 2009 decision by acting prosecutions head Mpshe to drop the 783 counts of fraud, corruption and racketeering, was irrational.
In his judgment, Justice Leach said the picture that emerged was one in which Hofmeyr and Mpshe were “straining to find justification” for discontinuing the prosecution.
In 2016 Hofmeyr took the battle to Abrahams, accusing him of misleading the court, sidelining him and aligning himself with a “systematic pattern of improperly protecting” Jiba.
When Zuma appointed Abrahams as NDPP, the new NPA boss rapidly announced the withdrawal of perjury charges against Jiba and placed her in overall charge of prosecution services, relegating Hofmeyr to the legal affairs division.
How we got here
On Monday in the Constitutional Court, In the majority judgment, Justice Mbuyiseli Madlanga said “the rule of law dictates that the office of NDPP be cleansed of all the ills that have plagued it for the past few years”.
In June 2014 — following internal conflict within the senior leadership of the NPA — then president Jacob Zuma took a decision to institute a commission of inquiry into former NDPP Mxolisi Nxasana’s fitness to hold office and informed him that he would be suspended pending the outcome of the inquiry.
In February 2015, a commission of inquiry was formally appointed. However, a settlement was eventually reached between Zuma and Nxasana, and the latter vacated his position as NDPP in May 2015, with a R17.3-million settlement. Though the Constitutional Court ruled that the terms of Nxasana’s termination as NDPP were unconstitutional, the “golden handshake” was cited in the judgment as a reason why Nxasana would not be fit to resume the office of the NDPP.