A panel chaired by retired Constitutional Court Justice Yvonne Mokgoro has recommended the removal of deputy national head of prosecutions, Nomgcobo Jiba and head of the Specialised Commercial Crime Unit (SCCU), Lawrence Mrwebi.
In a damning 342-page report, the panel found that Jiba had “allowed, and in fact enabled, the independence of the National Prosecuting Authority (NPA) to be compromised” in its prosecution of retired KwaZulu-Natal Hawks head Johan Booysen for racketeering.
The panel of three was appointed by President Cyril Ramaphosa to look into the fitness for their posts at the NPA. In a detailed report, the panel found Jiba and Mrwebi unfit on a number of grounds.
Ramaphosa has until Friday to decide whether or not to remove them. He has already given the pair an opportunity to make submissions on the report and it is understood he will make an announcement of his decision imminently. It will then be for Parliament to decide whether to restore them to office.
The racketeering charges against Booysen related to what was publicly known as the Cato Manor “death squad”, after a series of articles were run in the Sunday Times newspaper, about the alleged extra-judicial killings of 45 people by the Durban Organised Crime Unit, whose office was in Cato Manor. Last year, the Sunday Times retracted the stories and apologised for them.
The racketeering charge had been successfully challenged by Booysen in the high court, which found that the decision — taken by Jiba — to charge him for racketeering was irrational.
Mokgoro’s panel found that Jiba had been inconsistent in her explanations for why an outside team — not from the KwaZulu-Natal office — had been parachuted in to conduct the prosecution, saying one thing to the president and another to the Mokgoro inquiry.
Jiba had told Ramaphosa that she brought in an outside team because the acting head of the KZN office, Simphiwe Mlotshwa, had “pleaded” for this. But after Mlotshwa gave evidence before Mokgoro’s panel, she said she had done this because the Independent Police Investigative Directorate had asked for it.
“The inconsistencies in the reasons she gave for establishing a national prosecuting team indicates that she acted with favour and with prejudice to the NPA,” the report says.
When it came to litigation over the decision to withdraw corruption charges against former Crime Intelligence head Richard Mdluli, the panel found that Jiba’s approach to the litigation was “misleading and in following that approach, she compromised her integrity and consequently cannot be entrusted with the responsibilities of the office that she holds”.
Jiba did not respect court processes, the report further states. “As a senior member of the NPA, Jiba has displayed irreverence to the courts and indifference to their processes,” the panel concluded.
In evaluating the evidence, the panel also said that Jiba’s decision to depose to an affidavit in the litigation over the “spy tapes” had a “bearing on her integrity”. The spy tapes were recordings of telephonic conversations — mostly between former NPA head Bulelani Ngcuka and former Scorpions head Leonard McCarthy — which formed the basis for the NPA’s decision to drop corruption charges against former president Jacob Zuma in 2009.
The panel said Zuma’s presidential pardon of her husband Booker Nhantsi, which expunged his criminal record, could give rise to a perception of bias on her part — something she had a duty to guard against.
The report was even more scathing about Mrwebi saying he “did not act with integrity” and showed himself to “lack understanding of the law”.
The way he went about withdrawing charges against Mdluli was irrational and unlawful. The circumstances surrounding it — receiving representations from Mdluli before Mrwebi had even been officially appointed to head up the SCCU and taking the decision “without reference to his colleagues” — showed that he failed to act without favour, said the panel.
At the time of publishing, the Mail & Guardian was unable to obtain comment from Jiba and Mrwebi. This article will be updated when comment is obtained.