Any new revelations made by former National Prosecuting Authority (NPA) head Mxolisi Nxasana, in his statement before the Zondo commission of inquiry into state capture, will be “held back” until implicated parties have had enough time to view the allegations against them.
Nxasana’s evidence before the commission — chaired by Deputy Chief Justice Raymond Zondo — was interrupted on Wednesday afternoon, when counsel for axed deputy prosecutions head Nomgcobo Jiba, Vuyani Ngalwana SC, asked that evidence against his client be withheld until she has been afforded an opportunity to review it.
On Wednesday morning, the head of the commission’s legal team, Paul Pretorius SC, revealed that implicated parties had not been notified in advance of the hearing of Nxasana’s evidence.
The commission’s regulations require that notices be sent to people implicated by witness statements in advance of oral evidence.
According Pretorius, Nxasana’s statement had only been finalised on Tuesday evening and the commission’s legal team had not been afforded enough time to notify implicated parties.
Already some hours into Nxasana’s evidence, Ngalwana made an appearance at the commission to raise the concern of client that she had not been given an opportunity to scrutinise and respond to the allegations made against her.
Ngalwana also questioned the timing of Nxasana’s appearance before the commission.
“Any allegation that is made against a person is taken by society to be the truth before it is tested,” Ngalwana said, adding that the allegations made against Jiba at the commission may “colour” how her recent dismissal is considered by Parliament.
Jiba was dismissed by President Cyril Ramaphosa in April, following the recommendations of the Mokgoro inquiry into her and former head of the specialised commercial crime unit Lawrence Mrwebi’s fitness to hold office.
Ramaphosa’s decision must still be ratified by Parliament.
But Ngalwana indicated that there should be no impediment to Nxasana giving evidence that has already been in the public domain.
“Any evidence that implicates Ms Jiba should be held back … The opportunity to deal with such evidence at this forum will come,” he said.
Jiba has previously been accused of spearheading an effort to have Nxasana removed as national director of public prosecutions.
At the height of the infighting at the NPA, Nxasana appealed to Zuma to suspend Jiba. Nxasana later charged Jiba with fraud and perjury in relation to her decision to authorise a prosecution for racketeering against retired KwaZulu-Natal Hawks head Johan Booysen.
Pretorius emphasised that Nxasana’s evidence was not timed to prejudice Jiba. Zondo further noted that Nxasana was called on his directions, pursuant of a number of allegations made at the commission relating to political interference at the NPA.
“I must just emphasise that the commission seeks to strike a balance among various interests and one of these is that it seeks to ensure fairness to all parties, including implicated person,” Zondo added.
Zondo said there “should be no problem if the evidence includes matters that have been dealt with in court judgments or affidavits filed in court”, ordering that no new evidence be dealt with until further notice.