The struggle to find a smoking gun


The inquiry into the fitness for office of suspended deputy head of prosecutions Nomgcobo Jiba began with a bang on Monday after the Sunday Times reported that former Bosasa chief operating officer Angelo Agrizzi would tell the Zondo inquiry into state capture that Jiba had been on Bosasa’s monthly bribe payroll.

In the article Jiba denied receiving bribes, a denial that was repeated by her counsel Thabani Masuku SC when the Mokgoro inquiry got under way. He said the media reports were prejudicial to Jiba.

The inquiry, chaired by former Constitutional Court judge Yvonne Mokgoro, was established by President Cyril Ramaphosa to look into whether Jiba and head of the National Prosecuting Authority’s specialised commercial crime unit Lawrence Mrwebi were fit for office after the two had been roundly criticised in a number of court judgments in high-profile and politically sensitive court cases.

When the Mokgoro inquiry began the contents of Agrizzi’s affidavit had been leaked to the media, evoking Deputy Chief Justice Raymond Zondo’s wrath. Evidence leader Nazreen Bawa SC said her team had asked the Zondo commission for Agrizzi’s statement, but that, until it was received, it couldn’t be considered as evidence before Mokgoro.

By day three, Agrizzi’s statement had been widely circulated in public, but had not been received by Bawa’s team. Agrizzi, testifying orally before Zondo, made allegations relating to Jiba on Thursday.

The result was that, as the bombs dropped in Parktown, it was a far less juicy affair in Centurion at the Mokgoro inquiry. Evidence came from acting national director of public prosecutions Silas Ramaite on the legal framework governing the NPA. Evidence was also led on how a prosecutor specially designated to deal with foreign bribery allegations had been sidelined.

It was not the first time that Jiba’s name had come up at the state capture inquiry. In November, Mahlodi Muofhe, former special adviser to Ngoako Ramatlhodi, told the Zondo commission that in March 2015 he had been called to a meeting with then-president Jacob Zuma. He said Zuma had suggested appointing him as national director of public prosecutions (NDPP). Muofhe, who attained his law degree only five years earlier and had never been a prosecutor, said he was shocked by the suggestion.

He said he had asked Zuma why he was unhappy with former NDPP Mxolisi Nxasana. Muofhe testified: “The former president said to me he was unhappy that Mr Naxana [Nxasana] had decided to charge Ms Nomclowachiva [Nomgcobo Jiba].

“And at that point, chairperson … what went on in my mind, I then felt that the former president wanted to appoint me as the director of [the] NPA, but Ms Nomclowachiva as the default director of the NPA. The message that I understood was: ‘I am appointing you as long as you do not touch Nomclowachiva.’ ”

Lurking behind the complaints and all the litigation concerning Jiba and Mrwebi is the widely held view that they would do Zuma’s bidding at the NPA and protect him and those close to him from prosecution, thereby fundamentally compromising the authority’s independence.

Muofhe’s evidence was a first-hand account of Zuma saying that Jiba was his person at the NPA — though not in so many words. Up till then, the publicly available evidence of her closeness to Zuma had largely been based on inference.

An inference was drawn in 2012 when it emerged that Jiba’s husband had had his criminal record erased by presidential pardon in 2010. There were also Jiba’s links to former crime intelligence head Richard Mdluli. In 2007 she was involved in a police investigation into Gerrie Nel, who was then at the Scorpions.

How Jiba came to work with Mdluli on the Nel investigation was bitterly disputed. According to papers filed in the labour court in 2009, her version — backed up by an affidavit from Mdluli — was that she was approached to assist with the police’s investigation into Nel through Prince Mokotedi, then in charge of the NPA’s integrity unit, who authorised her to help. The NPA’s version — it suspended her for this — was that she instigated the investigation with trumped- up claims about Nel because she blamed him for her husband’s imprisonment.

The Mdluli connection to Zuma goes back to the November 11 letter that Mdluli reportedly wrote to Zuma ahead of the ANC’s 2012 Mangaung congress, saying that “in the event that I come back to work I will assist the president to succeed next year”.

Corruption charges were dropped against Mdluli just six weeks later but the decision was reversed by the high court and the Supreme Court of Appeal (SCA). In later litigation — by the General Council of the Bar seeking to have Jiba and Mrwebi struck from the roll of advocates — the high court said: “In my view, Jiba was steadfast to do everything in her power to ensure that the charges against Mdluli were permanently withdrawn … By so doing, was mala fide [in bad faith], displayed ulterior motive and thus offended against the rule of law and the Constitution.” But its decision was reversed on an appeal to the SCA.

There was also Zuma’s obdurate refusal to suspend Jiba pending an inquiry into her fitness for office, despite a request from her former boss, Nxasana. But when his refusal was taken to court by the Democratic Alliance, the court found the president had not acted irrationally.

The dropping of charges against Mdluli is expected to be one of the central lines of inquiry by Mokgoro’s panel, because it is one of the issues for which Jiba and Mrwebi were severely criticised in court judgments. Jiba will also have to answer for her conduct in the prosecution of KwaZulu-Natal Hawks head Johan Booysen, who successfully took the prosecution on review, accusing her of dishonesty under oath.

But the inquiry’s terms of reference go broader: they ask the panel to look at whether she is fit for office — “not limited to matters relating to Richard Mdluli and Johan Wessel Booysen”. It may well be that the inquiry does its work without focusing on a smoking-gun link between Jiba and the former president.

For example, the evidence of senior prosecutor Chris Macadam on Tuesday had nothing directly to do with Zuma or Mdluli.

Macadam testified that, because he had been sidelined as a dedicated prosecutor for foreign bribery cases, the NPA had been on the verge of making an incorrect report to the Organisation for Economic Co-operation and Development (OECD) and had done little to investigate a number of serious foreign bribery allegations. He said his sidelining had been at Jiba’s insistence — although under cross-examination he admitted that this was based on what others had told him.

The investigations into foreign bribery allegations listed in the documents attached to Macadam’s affidavit are serious and include allegations related to the arms deal and the contract awarded to Net1 for the payment of social grants.

Macadam testified that, had a progress report — prepared in his name but amended “in red” by Mrwebi — been tabled before the OECD, it would have seriously embarrassed South Africa. Jiba and Mrwebi are still to have their say on Macadam’s testimony and all the other claims.

Those who give evidence at the inquiry will be subjected to cross-examination — an effective way of obtaining the truth.

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

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