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Mokgoro inquiry on hold over Jiba’s fair trial rights

The Mokgoro commission of inquiry was put on hold for a day on Wednesday after counsel for deputy prosecutions head Nomgcobo Jiba raised concerns about the evidence of a witness who was about to give testimony.

The commission — chaired by former Constitutional Court Justice Yvonne Mokgoro — is looking into the fitness for office of Jiba and suspended special director of public prosecutions, Lawrence Mrwebi. Both have been the subject of a number of scathing rebukes from the courts for how they performed their duties. The inquiry was in its third day of public hearings.

Senior prosecutor Jan Ferreira was sworn in to begin his evidence. Before he began, however, Thabani Masuku SC, Jiba’s counsel, said his team was concerned that the evidence may impact on Jiba’s right to a fair trial if she was to be prosecuted for perjury and fraud.

READ MORE: Jiba never received a bribe, Mokgoro inquiry hears

When Mxolisi Nxasana was prosecutions head, Jiba was charged with perjury and fraud because of statements she made in an affidavit authorising the prosecution of the head of the Hawks in KwaZulu-Natal, Johan Booysen. Booysen went to court to set aside the prosecution and won the case. In his judgment, Judge Trevor Gorven criticised Jiba, saying when she was accused of mendacity, her response was “deafening silence”.

When Shaun Abrahams took over from Nxasana, the decision to prosecute Jiba was controversially dropped and later overturned by a court.

Ferreira was expected to be the prosecutor had the case gone ahead, Masuku said. He was about to give evidence before Mokgoro that motivated for the prosecution, arguing why there was a strong case against her. It was unfair and inappropriate for him to give evidence on this, Masuku added.

Masuku continued, saying if a decision about whether to press ahead with the prosecution had been made by acting prosecutions head Silas Ramaite, that should be put before the commission.

Evidence leader Nazreen Bawa SC said she did not want the inquiry to impact on any of Jiba’s fair trial rights. But she explained that the arguments for and against Jiba’s prosecution were already in the public domain as the decision to drop charges against Jiba had been the subject of litigation. She said the inquiry would not be able avoid dealing with the subject.

After a break where the panel deliberated on the concern, Mokgoro asked the panel to submit written heads of argument as to why the rights to a fair trial is impacted where the versions of Jiba and Ferreira had already been ventilated before the court. She said if a decision to prosecute has in fact been made by the NPA, this had to be furnished today.

The hearing is adjourned until 10 am on Thursday morning.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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