It would be “manifestly inappropriate” to reinstate Nomgcobo Jiba, said Shamila Batohi, the head of the National Prosecuting Authority (NPA), in court papers this week.
Jiba, the former deputy national director of public prosecutions was removed by President Cyril Ramaphosa after an inquiry under the NPA Act found that she was not fit and proper for office. She has challenged her removal in court, saying the inquiry, chaired by retired Constitutional Court judge Yvonne Mokgoro, felt like a “political hatchet job” and that her removal was unlawful and unconstitutional.
Part A of her court case — asking the court to reinstate her, pending Part B, in which she challenges the inquiry’s report and her removal — is due to be heard in the Western Cape high court on Thursday. In the meantime, Parliament — required by the NPA Act to consider the president’s decision and decide whether to restore her — agreed to delay its process until after the court has ruled.
Batohi said in court papers that there has been “a fundamental breakdown in trust” between Jiba and the NPA. Her “integrity, independence and commitment to the values and standards of the NPA” had been called into question.
“An internal review in the NPA of certain decisions that the applicant took when serving as acting NDPP [national director of public prosecutions] and deputy NDPP, has exacerbated the breakdown in trust.”
Batohi said that restoring the credibility and public trust in the NPA “after years of division and factionalism” was a priority. The work of rebuilding would be seriously undermined if Jiba were to return to the authority.
“This is not a personal issue but an institutional one,” she said.
In her application, Jiba had argued that, under the NPA Act, it was only after the president’s
decision to remove her was confirmed by Parliament that the decision to remove her could be implemented.
Her removal prior to Parliament having its say was unlawful, she said. And as a result her legal fees were no longer payable by the state, which had hampered her ability to argue her case before Parliament and court, she said.
In court papers from the presidency, Joseph Sello Mabelane, the principal state law adviser in the presidency, said Jiba’s contention was based on a “fundamental misreading” of the NPA Act.
He said the relevant section provided for Jiba’s removal from office “and thereafter for Parliament to ‘pass a resolution as to whether or not the restoration to his or her office … so removed is recommended’ ”.
Mabelane said it was not plausible to read the Act the way that Jiba had.
“Much, if not all, of the relief sought by Adv Jiba in Part A of her application rests on this wrong legal premise,” he said.
He added that the state had since granted Jiba funding for her legal representation.
He said it would be highly prejudicial to the NPA if the court were to prevent a new appointment to her post.
“The final determination of this application is likely to take considerable time, even years,” Mabelane said.
If the court were to grant Jiba what she had asked for, it would effectively mean “an essential position in the NPA remaining unfilled during this time. This is highly undesirable and prejudicial to the proper functioning of the NPA,” he said.