Jiba scores a ‘yes’ – and a ‘no’

NEWS ANALYSIS

Nomgcobo Jiba’s conduct in the litigation over the so-called spy tapes was not a “frolic of her own” but was based on legal advice to remain neutral, her former counsel, Paul Kennedy SC, told the Mokgoro inquiry.

The inquiry, chaired by former Constitutional Court justice Yvonne Mokgoro, is looking into the embattled deputy national director of public prosecutions’ fitness for office.

One of the issues before the inquiry is Jiba’s conduct during the “spy tapes” litigation, for which she was severely reprimanded by the Supreme Court of Appeal.

Also before the inquiry is her conduct in the case brought by Freedom Under Law (FUL) to set aside the decision to drop corruption charges against the former head of crime intelligence, Richard Mdluli.

The inquiry has also received another statement — far less exculpatory than Kennedy’s — from Leon Halgryn SC, Jiba’s counsel at some point in the Mdluli/FUL case.


Neither Kennedy nor Halgryn offers any opinion on whether Jiba is fit for office. But their statements are significant because Kennedy’s goes against the widely held view that Jiba was Zuma’s lackey in the National Prosecuting Authority (NPA). Halgryn’s, on the other hand, supports the argument that Jiba kept appointing new legal teams in the Mdluli case until she found one willing to do what she wanted. This in turn lends credence to the idea that Jiba was seeking to protect Mdluli from prosecution. She has consistently denied this claim.

The statements offer a hitherto unseen glimpse into the discussions between Jiba and her lawyers, normally strictly confidential in terms of attorney-client privilege. With both statements, the NPA waived its privilege and the two were granted permission to speak by the Bar Council.

The statements are also relevant to an appeal by the national advocates body, the General Council of the Bar (GCB), soon to be heard by the Constitutional Court on whether Jiba and special director of public prosecutions Lawrence Mrwebi are fit to be advocates.

The spy tapes were recordings of conversations, including between former Scorpions head Leonard McCarthy and South Africa’s first national director of public prosecutions (NDPP), Bulelani Ngcuka, about the timing of the indictment of then deputy president Jacob Zuma for corruption. When corruption charges against Zuma were dropped, the then acting prosecutions head, Mokotedi Mpshe, said the tapes showed political interference in the Zuma prosecution that warranted its discontinuance.

The marathon battle by the Democratic Alliance to get its hands on the tapes in terms of Rule 53 of the Uniform Rules of Court — part of its bigger battle to get the NPA to reverse Mpshe’s decision — went on for five years and went to the Supreme Court of Appeal (SCA) twice. Rule 53 requires a decision-maker to provide a “record” of the decision being challenged — all the documents used by the decision-maker in coming to the decision in question.

In his judgment, the acting deputy president of the SCA, Mahomed Navsa, said Jiba’s affidavit in the tapes litigation was generalised and meaningless. “Furthermore, it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality, or otherwise, of documents and other materials within its possession, particularly in the face of an order of this court. Its lack of interest in being of assistance to either the high court or this court is baffling … This conduct is not worthy of the office of the NDPP.”

But Kennedy explains that the NPA’s stance was guided by the decision to remain neutral. The DA was alleging bias, he said, and in the circumstances “it was obviously important that the NPA should deal with the litigation in a way which should not give rise to or exacerbate any perception of taking sides”.

Referring to the criticism of Jiba’s approach, Kennedy said: “The stance of neutrality was not a frolic of her own. It was a position adopted by her as client and us as a team collectively.”

He added: “What was done in relation to the conduct of the matter and the preparation of Adv[ocate] Jiba’s affidavit was done on the basis of careful discussion and professional legal advice which we furnished her.”

But Halgryn’s statement is less supportive of Jiba. He headed one of the three legal teams that was briefed but then dropped by the NPA when FUL went to court over the decision to drop corruption and fraud charges against Mdluli.

When the GCB went to court seeking to have Jiba and Mrwebi struck off the roll of advocates, it argued that Jiba had disregarded the advice of Terry Motau SC and Halgryn, even probably firing Halgryn because she did not like his advice.

Then, “at the 11th hour”, a new, fourth team was briefed “on a stated set of affidavits”, said Schalk Burger SC, the GCB’s counsel, when the case was argued in the high court. She could not then argue that she did what she did because she was so advised, said Burger.

Jiba said in her answering affidavit that the NPA team could not agree with Halgryn because he had made certain “assumptions”, including that there was a prima facie case against Mdluli.

In his statement, Halgryn set out what happened at their last consultation on August 8 2013, before the team’s mandate was terminated. He said that no assumptions were made, “but our advice was based on the facts as they appeared from the documentation and information provided and the correct and proper interpretation of the applicable statutory provisions and constitutional principles”. He added that “at no stage” during the meeting did Jiba express any disagreement with his view.

When Halgryn’s statement was raised in cross-examination with Jiba, she said her “difficulty” was that a new team had been appointed to prosecute Mdluli, which insisted the case was not ready for court. When she met with the team after her meeting with Halgryn she said the new prosecutor had said: “ ‘Well, if you instruct us to enrol this case, when we tell you that the case is not ripe for such, we will say that you have instructed us to prosecute the case so that the accused person can get an acquittal.’ And that for me was too much to bear,” said Jiba.

Halgryn also said his team “specifically pointed out” to Jiba that the filing of a “proper and complete record was an absolute necessity”.

The docket alone consisted of three lever arch files, but the record provided was only 67 pages. “One thing was as clear as daylight and that was that what was filed as the record of proceedings was indeed far from that,” he said.

The incomplete record and the delays it caused were referred to by high court Judge John Murphy who said the reasons given for this were “sparse and mostly unconvincing”.

In her affidavit answering to the GCB’s case, Jiba said there was a “relatively uncertain position of the law at that time” about what should be provided as part of a Rule 53 record.

Halgryn said this was “misguided and incorrect”. But she stuck to this in cross-examination before the inquiry, saying the different teams had different views about what would be adequate for the record.

Halgryn said, however: “An omission to produce a full and proper record can only be either negligent (which is inexcusable) or deliberate, which will amount to a deliberate misrepresentation to a court.”

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

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