/ 16 August 2019

Jiba guns for president, the NPA

About-turn: Nomgcobo Jiba initially showed confidence in the Mokgoro inquiry but has now accused it of ‘unbridled bias’.
About-turn: Nomgcobo Jiba initially showed confidence in the Mokgoro inquiry but has now accused it of ‘unbridled bias’. (Paul Botes/M&G)



Nomgcobo Jiba has said in court papers that the inquiry that recommended her removal as deputy national prosecutions head felt like a “political hatchet job”.

Jiba was removed by President Cyril Ramaphosa after an inquiry, chaired by retired Constitutional Court Judge Yvonne Mokgoro, found that she was not fit and proper for her post at the National Prosecuting Authority (NPA).

Ramaphosa established the inquiry in terms of the NPA Act after Jiba had been criticised in a number of judgments in highly political court cases, and after years of rumours and allegations that she was an ally of former president Jacob Zuma.

Ramaphosa’s decision to remove her may yet be reversed by Parliament, but the embattled prosecutor has urgently approached the Cape Town high court to stop the parliamentary process in its tracks — until the court has heard her application to set aside the president’s decision.

In the meantime, in part A of her case, Jiba wants to be reinstated in her post “with all associated employment benefits”.

In a 163-page affidavit, Jiba gunned for the president, the NPA and Mokgoro’s panel.

She said the NPA and the president had bypassed the parliamentary process, which they were not entitled to do. As a consequence, she lost her employee benefits, in particular legal representation at the state’s cost. “That had a debilitating effect on my ability to defend my right to remain an employee of the NPA,” she said.

The move by the NPA was “vindictive” and was “simply to please the president”, she said. It was also different to how former national director Vusi Pikoli had been treated when he was removed.

The NPA this week filed a notice that it would oppose Jiba’s application but would not comment on her claims.

In her affidavit, Jiba said that in part B of the case, she would argue that the way a prosecutor exercises her discretion to prosecute can never form the basis for a misconduct claim. To the extent that the NPA Act allowed this, it was unconstitutional.

She also argued that it was inimical to prosecutorial independence that the national director and deputies could be removed by a simple majority of Parliament — unlike judges and the heads of chapter nine institutions, who require a two-thirds majority to be removed.

There was a “cry out” for strengthening the NPA’s independence, she said, and the simple majority for removal did not do this. “This honourable court needs to provide appropriate relief that will cure this defect in both the Constitution and the NPA Act,” she said.

Jiba said Ramaphosa’s reliance on criticism in judgments had undermined the authority of the courts. The Supreme Court of Appeal had found that the criticism against her did not warrant her being struck off the roll of advocates. Although the Mokgoro inquiry was looking into a different matter — whether she was fit and proper for her post at the NPA — the inquiry and the president were bound by the factual findings of the Supreme Court of Appeal.

“It is simply unheard of for the executive to ignore court orders and pronouncements and embark on a parallel inquiry in which they go on a fishing expedition to find anything they can pin on the DNDPP [deputy national director of public prosecutions],” she said.

The president had “targeted me for removal,” she said, and the Mokgoro enquiry was “just a charade to legitimise” it. Jiba reserved her harshest criticism for the Mokgoro panel, which included senior counsel Kgomotso Moroka and attorney Thenjiwe Vilakazi.

Her attitude in the court papers was in sharp contrast to what it had been at the beginning of the inquiry, when, in an opening statement, Jiba had said that, whatever the outcome, “I am finally judged by persons whose integrity and sense of fairness I trust completely.”

Yet, in her court application Jiba said Mokgoro’s panel had made “false allegations” about her and had shown “unbridled bias” against her.

She said the enquiry discounted evidence or did not call witnesses who would have favoured her. Instead the report had adopted large swathes of the submissions of the evidence leaders — “so much so that even spelling mistakes made in those submissions found their way into the report”. Her own submissions were not considered, she said.

Speaking on behalf of the Mokgoro inquiry, Bongiwe Gambu said the panel would not oppose Jiba’s application. “In our view, there is no need to defend our recommendations, as the report speaks for itself.”