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08 Feb 2019 00:00
Deputy public prosecutions head Nomgcobo Jiba listens to former Hawks official Johan Booysen at the Mokgoro inquiry this week. (Paul Botes/M&G)
Nomgcobo Jiba is expected to testify soon at the Mokgoro inquiry, giving the embattled and media-shy deputy prosecutions boss a chance to tell her side of the story in person after years of accusations that she was motivated by politics rather than principle in her work at the National Prosecuting Authority (NPA).
Perhaps more significantly, it will be the first time she has been cross-examined about any of the allegations made against her and her responses to them. Despite years of litigation, all her evidence so far has been in the form of affidavits.
If cross-examination is the best way of getting to the truth, Jiba’s evidence is one to watch.
The inquiry, chaired by Yvonne Mokgoro, a former Constitutional Court judge, was established by President Cyril Ramaphosa to investigate whether Jiba and the head of the NPA’s specialised commercial crime unit, Lawrence Mrwebi, are fit for office.
Alongside the judicial criticism is a widely held concern that the NPA, which is supposed to take its prosecution decisions independently, has been tainted by political interference.
After three weeks of testimony, two prosecutorial decisions have dominated the inquiry: the decision to drop corruption charges against former crime intelligence head Richard Mdluli and Jiba’s authorisation of racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen in August 2012 when she was acting head of the NPA.
The racketeering charges related to what was publicly known as the “Cato Manor death squad” after the now discredited exposé by the Sunday Times of the alleged “extra-judicial killings” of 28 people by the Durban organised crime unit, whose office was in Cato Manor.
Booysen testified before Mokgoro on Monday and repeated what he had successfully argued before Judge Trevor Gorven in a KwaZulu-Natal high court in 2014: when Jiba authorised racketeering charges against him, not one of the statements that she said she had relied on to do so linked him to the crime — or to any crime.
Worse, one of the statements, by now dishonourably discharged policeman Colonel Rajen Aiyer, did not even exist at the time of the authorisation, he said. The other was unsigned, undated and unstamped and could not be called a statement under oath.
When he invited Jiba to explain this to the court, she did not, he said.
In his judgment Gorven delicately referred to these as “inaccuracies”. He said: “As regards the inaccuracies, the NDPP [national director of public prosecutions] is, after all, an officer of the court. She must be taken to know how important it is to ensure that her affidavit is entirely accurate.
“If it is shown to be inaccurate and thus misleading to the court, she must also know that it is important to explain and, if appropriate, correct any inaccuracies. Despite this, the invitation of Mr Booysen was not taken up … In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence.”
In the first week of the Mokgoro inquiry, a senior prosecutor in the Pretoria office of the specialised commercial crime unit, Jan Ferreira, testified that he had also looked at the documents on which Jiba said she had based her decision. In his view, the “inaccuracies” referred to by Gorven warranted perjury and fraud charges to be brought against her. “I would dare you to read those four statements and say how Booysen is implicated,” he said under cross-examination.
At the height of the bitter infighting at the NPA in 2013, when Mxolisi Nxasana was at the helm of the NPA, perjury charges were brought against Jiba, only to be withdrawn when Shaun Abrahams replaced Nxasana.
Jiba’s explanation before the high court in Pretoria — and which she is likely to repeat before Mokgoro — was that she had been in the process of responding to Booysen’s invitation but her senior counsel told her it was not necessary to do so. She also said Aiyer had made two statements — one before her authorisation and one after — but the content “was information already relayed to the prosecutorial team”.
Her explanation convinced the Pretoria court, which said that, when it came to the Booysen matter, Jiba had done nothing to make her unfit to be an advocate. Judge Frans Legodi said she had explained it and there was no bad faith on her part.
But when this was put to Booysen on Monday, he said it was “astonishing” that the head of the prosecuting authority, whose decisions could send people to jail for the rest of their lives, did not explain when asked “how it is possible that she can say under oath that she considered evidence that, objectively seen, did not exist at the time that she took the decision”.
Booysen also testified that he believed there was a reason for the inexplicable authorisation. He said, at the time, he had been investigating Durban businessperson Thoshan Panday and “serious irregularities” in contracts worth R60-million awarded to him by the South African Police Service during the 2010 Fifa World Cup.
He said R45-million had already been paid on the contracts, but he had put a freeze on the outstanding R15-million. But then his assistant told him that Edward Zuma had asked for a meeting. When they met in his office, Zuma told him that he was Panday’s “silent partner” and he was not getting his dividends because of the freeze on the R15-million.
“He told me he would like me to release the money,” Booysen said.
He added that, in a lawful interception of Panday’s calls, Panday was told that “Booysen’s wings will be clipped”.
Edward Zuma could not be reached for comment but he has previously denied that he was Panday’s partner or that he had met Booysen in his office.
Booysen’s view that his prosecution was politically motivated was, to some extent, backed up by the evidence of the former acting director of public prosecutions in KwaZulu-Natal, Simphiwe Mlotshwa. Mlotshwa testified on Friday about how the Cato Manor case, which ordinarily would have fallen into his jurisdiction, was given to another team.
He said he was called by Jiba in the early months of 2012 and told there was a case “where, because of pressure, we had to enrol as a matter of urgency”.
He was never told what the case was or where the pressure was coming from, he said. But then, a few days later, he was told by Johannesburg director of public prosecutions Andrew Chauke that a team from outside KwaZulu-Natal would be dispatched to prosecute the Cato Manor case because of “security concerns”.
Mlotshwa said he was told by Jiba that he could delegate the Cato Manor prosecution to another team but he would still need to sign off on the indictment. Mlotshwa said, when he asked for the memo — setting out the evidence against Booysen — in order to to sign the indictment, he was not given it.
Mlotshwa also resolutely denied that it was he who had called for a prosecuting team from outside of the province, as had been claimed by the prosecutor who headed the Cato Manor case. The prosecutor, Sello Maema, made the claim in an affidavit and said that he had been told as much by Jiba.
His affidavit said: “The reason that was being given at the time by the acting national director of public prosecutions [Jiba] was that [Mlotshwa] had approached her with a request to appoint prosecutors from other divisions … as the prosecutors in his division had worked over a number of years closely with the members of the Cato Manor [unit].”
“I do not agree,” said Mlotshwa last Friday.
Even without a conspiracy theory of political interference, lying under oath in judicial proceedings is a serious wrongdoing for an officer of the court; even more so for a deputy national director of public prosecutions.
Jiba was first expected to testify on Wednesday this week but the inquiry ran behind schedule and it is not clear yet exactly when she will be called to give her evidence.
Watchers of judicial — and quasi-judicial — proceedings know that a proper assessment can’t be made until all sides have had their say.
Read more from Franny Rabkin
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