Prosecutors shouldn’t be concerned with public narratives, Jiba tells Mokgoro inquiry

Prosecutors should not be concerned about public narratives when taking prosecutorial decisions, embattled deputy national director of public prosecutions Nomgcobo Jiba said on Monday.

Jiba was answering questions at the Mokgoro inquiry into whether she is fit for office. The inquiry is also looking into the fitness for office of Lawrence Mrwebi, head of the Specialised Commercial Crime Unit at the National Prosecuting Authority (NPA), after the two were criticised in a number of court judgments in politically sensitive court cases. One of these was the marathon court battle over the “spy tapes” — the recordings of phone conversations that were used to drop corruption charges against former president Jacob Zuma.

Earlier, evidence leader Nazreen Bawa SC asked Jiba whether she should not have considered recusing herself from making decisions related to Zuma to avoid perceptions of bias, as it was only a few months earlier that Zuma had pardoned her husband for stealing a client’s trust money.

Jiba responded saying that the important decision in respect of Zuma had already been taken: in 2009 former acting national director Mokotedi Mpshe had decided to discontinue the corruption prosecution against the former president. What was left for her to decide was in relation to the litigation seeking to set that decision aside and related to the provision of court records. She said she failed to see how those decisions could be perceived as helping Zuma.

In response to further questions by her counsel Thabani Mauku SC, Jiba said that basing decisions on public perceptions could be dangerous. She used as an example the failed prosecution of members of the controversial Gupta family and their associates in relation to Vrede Dairy case. She said there was public pressure to see a prosecution of the Guptas but when she returned from special leave, she was told that “there wasn’t really sufficient evidence to institute a prosecution, but the pressure was brought to bare that something must happen,” she said.

“So it’s very important that we don’t pay attention to what the public narrative is … It shouldn’t matter at all. What should guide you is the evidence presented at the time.”

Jiba further detailed her stand-off with former national director of public prosecutions (NDPP) Mxolisi Nxasana when she was asked why she did not respond to his requests for report backs on certain cases.

Jiba said she had briefed Nxasana extensively and had told him that when it came to specific prosecutions, the directors of public prosecution in the provinces were better placed to brief him.

“Those were not normal times,” she said, adding that she “had fears that something was really set up to happen to me” implying Nxasana was looking for a reason to be rid of her.

“I felt that I was a persona non grata, they were actually starting a particular process,” she said. After taking legal advice, she decided not to respond.

Asked by chair of the inquiry, retired Constitutional Court Justice Yvonne Mokgoro, to “take us into your confidence” about the “tensions” at the NPA, Jiba said that the working conditions for deputy national directors “are quite difficult, in the sense that you really [serve] at the pleasure of the NDPP”.

She was referring to the fact that, although the four deputy national directors are appointed by the president, their roles and responsibilities are assigned by the national director. “It does create tensions,” she said, adding that, with different national directors some deputies became “the favourites” and others were out of favour.

She said the national deputies had collectively failed to address these issues “with frankness and openness to the national directors”. When her colleague Willie Hofmeyr was unceremoniously moved from heading up the Asset Forfeiture Unit, she said, “None of us deemed it fit to address the NDPP and say this could not be correct because I felt like when i was facing challenges myself, he did not do anything.”

Jiba’s cross-examination ended on Monday.

The inquiry will on Wednesday and Thursday hear submissions from third parties, including the Council for the Advancement of the South African Constitution and Freedom Under Law.

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

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