Sometimes, politics and law are farcical. That may be true for many places; Greece’s new government is certainly has aspects of pantomime. But even for us, the National Prosecuting Authority has sunk to a new low, something that simply could not be made up, and which no good editor would even consider a true story. By STEPHEN GROOTES.
On Tuesday, the NPA issued a statement, with a completely straight face, to the effect that one of its four deputy heads, Advocate Nomgcobo Jiba, was now the subject of a summons to appear in court next month. That had been expected. What was not, was the statement of fact that she had refused to cooperate with police, and now was not at work despite there being “no record of her having applied for leave”.
So we now have the second-highest official in the NPA trying to avoid the police, and being unreachable. One presumes her days of being untouchable are nearly over. When the tangled history of the NPA is written, Jiba is going to be either the main villain, or his sidekick. She has been acting National Director of Public Prosecutions for months at a time, and will always be remembered for the ruckus over the decision to charge the Marikana miners with murder just after the police opened fire on them. She overruled a provincial prosecutor and withdrew the charges. Then there is her behaviour during the Richard Mdluli affair. She was a part of the decision to withdraw charges against him, which led to stinging – and I mean stinging – criticism from the Supreme Court of Appeal, when it ordered the reinstatement of those charges. Then those judges had another crack at her for allowing the NPA to simply stand aside and do nothing during the Zuma Spy Tapes Case. In short, she has appeared to be, according to her critics, Zuma’s agent within the NPA.
But time, and the law, have been catching up with her. Last year the Durban High Court ordered that charges of racketeering be dropped against the Kwa-Zulu/Natal head of the Hawks, Johan Booysen. As part of that judgement, the judge said he could not understand the decision to lodge charges in the first place. It had emerged that Jiba had signed the formal decision to charge Booysen based on a statement that had been deposed. However, that statement was only deposed two weeks after the formal decision. In other words, the statement didn’t exist when she made the decision.
As a result, the police were asked to investigate her conduct in this case (they are also investigating whether she broke the law in the Mdluli case, and considering five judges of the SCA said she did, it’s not difficult to guess how that matter is going to end). And following that inquiry, they’ve issued a summons for her to appear in “Regional Court 19, Pretoria”. But, according to the NPA, she has “failed to cooperate” with the police, so they can serve her with the summons. Hence, in what must have been an odd moment, they served her boss, Mxolisi Nxasana, so that he can give it to her.
Up to this point, none of this is particularly surprising. There is a history of ducking and diving. Jiba has previously refused to offer proof of her admission as an advocate for two years. When this reporter was finally able to put a question to her about this, her response was that it was a “nonsensical false” story, but gave no formal “yes” or “no”. In the end, her certificate of admission was found.
What is really unexpected is that Jiba is now, to all intents and purposes, absent without leave. She appears to have left the building, and the NPA can’t find her. If she was going to fight, surely she would be around to fight; if she felt any confidence whatsoever in her case, she would be ready for this. It couldn’t have been a surprise to her that such a summons was on its way.
At this point, one must ask if she is all right, and by that we mean physically okay, that something hasn’t happened to her. But one would also hope the NPA would have done that before issuing a statement.
In most organisations, not rocking up to work is an offence worthy of dismissal. So, if the NPA wasn’t able to get rid of her for all of her past missteps (and it seems that Nxasana has certainly tried), then it should be able to just for the fact she hasn’t arrived for work. She, of course, would know that. So perhaps this is, finally, an admission of defeat. Perhaps she knows that there is no more wiggle room; that, once the court process starts, Nxasana will be able to at least suspend her.
You may ask, at this point, why she has not been suspended before. Well, if you haven’t guessed it already, the answer lies with Number One. Her appointment is a presidential one, and the power to suspend her lies with him.
As a result, Nxasana, the subject of an inquiry into his fitness for office (which was first announced over six months ago, and will only go ahead in about six weeks’ time) has had to find other ways to remove her. First he asked retired Constitutional Court Judge Zac Yacoob to chair his own inquiry, which he did. But Number One has refused to follow Yacoob’s recommendations. And, for good measure, Jiba refused to cooperate with Yacoob too.
Just stop and think about that for a minute. There may be just one or two people in our legal community held in higher esteem than Yacoob. His neutrality and objectivity simply cannot be questioned. And she refused to cooperate.
One thing that this statement shows us is that Nxasana is either growing in confidence, or felt he needed to publicly move against Jiba before he, too, could be suspended. He may feel that he can actually act against Jiba, and that by going public, she is going to be weakened. Certainly, one would think she cannot now be named acting head of the NPA, should he be removed (there are four deputy NPA heads, but Jiba has usually been called on to be acting head).
But what this really tells us is that a deputy head of the NPA, someone who is tasked with upholding the law, doesn’t follow it, acts as if she is above it, and avoids the officers of the law, the police. If she doesn’t make her appearance in court, she could well be arrested for contempt of court.
This is how low we have sunk. DM
Grootes is an EWN reporter.
Photo: Deputy NPA head Nomgcobo Jiba. Picture: EWN.
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