Buried on page 257 of the Mokgoro report is a new revelation about the presidential pardon given to the husband of suspended deputy prosecutions head, Nomgcobo Jiba — Jacob Zuma’s pardon went against the recommendation of the justice minister and did not follow the usual processes.
The damning 342-page report of the inquiry into the fitness for office of Jiba and the head of the specialised commercial crime unit, Lawrence Mrwebi, recommends that Jiba be removed as deputy national director of public prosecutions. It also recommends Mrwebi be removed.
The inquiry, chaired by retired Constitutional Court Judge Yvonne Mokgoro, was established by President Cyril Ramaphosa under the National Prosecuting Authority (NPA) Act, which stipulates that Jiba and Mrwebi can only be removed after an inquiry into their fitness for office. The president, however, is not bound by the inquiry’s recommendations.
At the time of going to print he was yet to announce his decision.
For the inquiry’s purposes, circumstances around the pardon of Jiba’s husband, Booker Nhantsi, were not decisive. More important, for example, was the evidence that led to its finding that Jiba had “allowed, and in fact enabled, the independence of the NPA to be compromised” in its prosecution of retired KwaZulu-Natal Hawks head Johan Booysen for racketeering.
The panel also found that Jiba had “compromised her integrity and consequently cannot be entrusted with the responsibilities of the office that she holds”. But, whether Zuma had “captured” the NPA through Jiba is a question that has occupied the public imagination, especially after the dramatic — but yet untested — allegations of former Bosasa chief operating officer Angelo Agrizzi that Jiba and Mrwebi had been on the company’s payroll. Jiba and Mrwebi denied the allegations.
That Jiba has “links” to Zuma had been repeated so many times that it had become truth to many. But the evidence for it had always been inferential, the high watermark being that in 2010 Jiba’s husband was pardoned by Zuma for theft, thereby expunging his criminal record, and suggesting a quid pro quo.
In 2015 former prosecutor and now Democratic Alliance justice spokesperson Glynnis Breytenbach asked Zuma in a parliamentary question what “the rational grounds were” for the pardon. “There is a perception … that the approval of applications for presidential pardon is determined by political considerations,” she said.
Zuma’s reply, according to the parliamentary record Hansard, was: “On the basis of what is before us, in terms of information, that is what makes us take the decision of whether to give a pardon or not. I am sure the facts must have made the decision we took when we looked at the case itself.”
Whatever facts persuaded the president, it is now clear that then minister of justice Jeff Radebe and three other justice officials did not agree.
“The report attached to the application for pardon sent to the president from the minister recommended that the pardon be refused,” says the Mokgoro report.
The reasons were “the seriousness of the offence, the shortness of time that had lapsed since the conviction and that no exceptional circumstances had been shown to exist”. When the application was submitted, “investigations that normally take place when applications of this nature are dealt with were not completed”, says the report.
A memorandum, with the recommendation from the justice department, was sent just eight days after the application was received. “This was because the president had requested that the memorandum be submitted to the presidency on 11 November.”
No input was obtained from the NPA, nor any submission from Nhantsi because of the “urgency of the matter”, the minister is quoted as saying. It then took more than nine months for the president to grant the pardon, finally doing so in September 2010. “It is unclear as to why,” says the report.
This new information is not a smoking gun. Pardons are “an act of generosity from the president”; the only legal requirement is that the president acts rationally under the law. He is not required to listen to the justice department’s recommendations. That’s why there are often rumblings about the way pardons are granted.
The process, once an application is made, is strictly confidential and the applicant — or anyone else — would not usually know what the department recommended. Jiba’s attorney Zola Majavu said Jiba would not answer specific questions about the report at this stage. The panel does not conclude from this evidence that Jiba was captured. But the panel said Jiba’s decision to depose an affidavit in the litigation over the “spy tapes” had a “bearing on her integrity”.
The spy tapes were recordings of 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 Zuma in 2009. Part of the DA’s prolonged and ultimately successful battle to set aside the decision to drop the charges was a preliminary fight over access to the tapes. In this fight Jiba was one of the main deponents.
That Jiba didn’t recuse herself could give rise to a perception of bias — something she had a duty to guard against.
This was mild — it didn’t even make it to the recommendations section of the report — when compared with the panel’s finding on the Booysen matter.
The racketeering charge against him related to what became known as the Cato Manor “death squad”, after a series of articles were run in the Sunday Times about the alleged extrajudicial killings by the Durban organised crime unit.
The racketeering charge had been successfully challenged by Booysen in the high court, which found that the decision — authorised by Jiba — to charge him for racketeering was irrational.
Mokgoro’s panel found that Jiba had been inconsistent in her explanations for why a team not from the KwaZulu-Natal office had been parachuted in to conduct the prosecution. Jiba has said one thing to the president and another to the Mokgoro inquiry, the report said.
She had told Ramaphosa in a signed statement in August that she brought in an outside team because the acting head of the KwaZulu-Natal office, Simphiwe Mlotshwa, had “pleaded” for this.
But then Mlotshwa gave evidence before Mokgoro’s panel and “it was clearly apparent that he would have had no need to seek Jiba’s assistance and had not done so”, said the report. When Jiba later testified, she said she pulled in the outside team 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 concludes.
The report also describes other evidence about how the Booysen racketeering matter was treated differently to other racketeering authorisations by the NPA’s head office.
“The evidence establishes that she allowed, and in fact enabled, the independence of the NPA to be compromised,” says the panel.
Ultimately the Booysen matter takes us back to Zuma, or at least to his son. Booysen testified, corroborated by Brian Padayachee, head of crime intelligence in Durban, that he believed he was targeted because of his investigation into allegations of corruption by businessman Thoshan Panday, whose silent partner was Edward Zuma.