Evidence against Jiba ‘circumstantial at best’ — Arendse

Despite the “narrative” that the National Prosecuting Authority had “somehow been captured”, the evidence for this was “circumstantial at best,” said counsel for embattled deputy head of the NPA, Nomgcobo Jiba on Thursday.

Jiba’s counsel, Norman Arendse SC, was making his closing argument to the inquiry looking into whether Jiba and suspended head of the Specialised Commercial Crime Unit (SCCU) Lawrence Mrwebi are fit for their jobs at the NPA after the two were roundly criticised in a number of court judgments.

Thursday was the last day of oral hearings by the inquiry, chaired by retired Constitutional Court Justice Yvonne Mokgoro. Mwrebi’s counsel, Mervyn Rip SC, also made his closing arguments. The evidence leaders, led by Nazreen Bawa SC, will submit written arguments, the inquiry heard.

Arendse said many of the decisions that motivated the idea that Jiba was not acting independently and was promoting the agenda of former crime intelligence head Richard Mdluli or former president Jacob Zuma were in fact inherited by Jiba. The decision to drop corruption charges against Zuma was taken by former acting national director of public prosecutions (NDPP) Mokotedi Mpshe and the withdrawal of the charges against Mdluli happened before she was appointed acting NDPP.

Arendse said Zuma’s pardon of Jiba’s husband – often raised as a possible quid pro quo for her help in the NPA – happened more than a year before she was appointed acting head of the NPA. The application for the pardon was made a year before that in 2009 – “way before there could have been any suggestion or contemplation of Jiba assuming an influential position of authority in the NPA to advance some project,” said Mr Arendse.

“The evidence that has been placed before the enquiry is circumstantial at best,” said Arendse.

“Much of the evidence has been of a general and unspecified nature, that the NPA has somehow been captured, the implication presumably being that Advocate Jiba is guilty by association. There has however been no evidence of any involvement by her in an abuse of power and in the furtherance of a political agenda.”He said while Jiba may have made mistakes or wrong decision, this could not be sufficient to find that she is no longer fit and proper. Without a finding of bad faith, which impacts on the honesty and integrity, it would be “unjustified to recommend that she be removed from office,” he said.

Rip, on behalf of Mrwebi, agreed saying Mokgoro’s panel had to “separate the actual evidence that has been provided to the enquiry from the narrative”.

As far as the decision to withdraw charges against Mdluli was concerned, when the narrative is taken away “all that is left is an action by Advocate Mrwebi which some parties have criticised and disagreed with, whiles other parties seen to support,” he said.

Rip and Arendse were scathing about the evidence of Glynnis Breytenbach, who used to head up the SCCU’s Pretoria office, and of Willie Hofmeyr, also a deputy national director of public prosecutions. Rip said Breytenbach’s attribution of bad faith and an ulterior motive boiled down to a “gut feeling” – but that she submitted no evidence to support the feeling.

Arendse said: “Hofmeyr was highly critical of her integrity but failed dismally to provide any evidence to support his allegations.” Hofmeyr’s evidence was largely hearsay and was characterised by “a proclivity towards grand theories about the misuse of the NPA for political reasons”.

“His evidence in this regard, which was for the most part completely unsubstantiated, was more suited to an enquiry into the ‘capture’ of the NPA and in any event failed to implicate Advocate Jiba in this alleged abuse of power, save merely that some of the allegations occurred during her tenure as the acting NDPP.”

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

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