Jiba and Mrwebi not fit for office because of adverse findings by courts — FUL

Even without all the other evidence the Mokgoro inquiry has heard, the “slew” of judgments criticising Nomgcobo Jiba and Lawrence Mrwebi is enough to show that they are not fit for high office at the National Prosecuting Authority, said Freedom Under Law on Thursday.

Freedom Under Law (FUL) was admitted as a “third party” to the inquiry into whether the suspended depuy national director of public prosecutions and suspended head of the Specialised Commercial Crime Unit (SCCU) are fit for office. The inquiry is chaired by retired Constitutional Court justice Yvonne Mokgoro.

FUL has been one of the NGO’s that has litigated at length over what it says has been “the unlawful interference in the functioning and operations of the NPA and the unlawful abuses of public power by Ms Jiba and Mr Mrwebi”.

In written submission to the inquiry, FUL’s executive officer Nicole Fritz said: “Ms Jiba’s and Mr Mrwebi’s flagrant and continued misconduct has severely harmed various on-going sensitive and high profile investigations and pending cases, the rights and expectations of members of the public, and the very structure and operational integrity of the NPA. The protection of the rule of law and our Constitutional order accordingly requires prompt and clear action from this inquiry.”

FUL’s counsel Max du Plessis SC referred the inquiry to a full court judgment of the Pretoria high court, in which the court set aside the appointment of Berning Ntlemeza as head of the Hawks because he had been scathingly rebuked in an earlier court judgment.

Du Plessis said the requirements for fitness to head the Hawks was the same as what was set out in section 9 of the National Prosecuting Authority Act.

In the Ntlemeza judgment the court said: “Currently no appeal lies against the findings of dishonesty and impropriety made by the Court … Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza”.

Du Plessis said the same principle should apply in relation to Jiba and Mrwebi. Worse, the criticism of Ntlemeza was made in one case. When it came to Jiba and Mrwebi, there was a “slew” of judgments, he said.

However Jiba’s counsel Norman Arendse SC said the Ntlemeza judgment was different to the criticisms of Jiba and Mrwebi because there, Ntlemeza was found guilty of lying – which showed bad faith on his part. Arendse also said Mr du Plessis had not dealt with the majority judgment of the Supreme Court of Appeal, which he said had cleared the two. The judgment was in the case where national advocates body, the General Council of the Bar, sought to have the two struck from the roll of advocates. The SCA overturned the decision of the high court that the two should be struck off. The case is still to be heard by the Constitutional Court.

In the submissions, Fritz emphasised that Jiba and Mrwebi “are two of the most senior law enforcement officers of the Republic of South Africa and are both officers of court.”

“As advocates and officers of court, Ms Jiba and Mr Mrwebi are required to act with “complete honesty, reliability and integrity”.

The submissions also refer to Chapter 2 of the NPA’s Practical Guide to the Ethical Code of Conduct, which says a prosecutor is “personally responsible and accountable for the presentation of his or her case in court”.

One of the issues that has been raised at the Mokgoro Inquiry is the way in which Jiba and Mrwebi represented themselves in court affidavits – for which they were criticised by judges. In the case brought by Freedom Under Law over the decision to drop corruption charges against former crime intelligence head Richard Mdluli, the Supreme Court of Appeal said there was a “serious problem with the version presented in Mrwebi’s answering affidavit,” as it was “in direct conflict” with the evidence that he has given earlier during cross-examination at a disciplinary hearing of his former junior at the SCCU, Glynnis Breytenbach.

Then there was the comments from KwaZulu-Natal High Court judge Trevor Gorven in the case where former KwaZulu-Natal Hawks head Johan Booysen went to court to successfully set aside Jiba’s authorisation of racketeering charges against him. Gorven said Jiba had been “inaccurate” in her affidavit.

“As regards the inaccuracies, the NDPP 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 by the NDPP by way of a request, or application, to deliver a further affidavit. In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence.”

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

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