South Africa

Justice vs. Jiba the Untouchable: The saga continues

By Stephen Grootes 21 May 2015

The chaos within the National Prosecuting Authority has now become so complex that it sometimes resembles the inner workings of Luthuli House just before Polokwane 2007. Factions take on factions, people align themselves, and decisions are made that defy description… and then are reversed as soon as a judge sets eyes on them. Of course, this is not just a Game of Thrones we’re playing here; it’s important stuff that can determine whether we remain a law-abiding country. By STEPHEN GROOTES.

It has become clearer over the last few months that while President Jacob Zuma may want to remove the organisation’s head, Mxolisi Nxasana, he wants to keep its deputy head, Advocate Nomgcobo Jiba, in position. It is becoming obvious he has no rational reason for wanting this, unless it is to protect himself.

Last week, President Jacob Zuma cancelled the inquiry that was to be headed by Advocate Nazeer Cassim into whether Nxasana was fit for office – on the morning it was due to start. We suggested at the time that this was imposing chaos on the organisation. We also suggested that it was perhaps because Zuma’s lawyers had realised they were going to lose, and there was nothing that worried Zuma more than a National Director of Public Prosecutions who was angry, and could not be suspended.

In the meantime, there has been another dynamic at play. Jiba, one of the four deputy heads of the NPA, has appeared to be doing Zuma’s bidding. It was she who helped decide to withdraw the charges against former Police Crime Intelligence Head Richard Mdluli. It was she who, while leading the NPA temporarily, did nothing in the Zuma Spy Tapes case when she had a duty to act. And it was she who decided to charge the KZN head of the Hawks Johan Booysen, before that decision was overturned by a judge. All in all, a person now occupies the position of deputy head of the NPA who is facing perjury charges because of the Booysen case, who has been criticised in two separate Supreme Court of Appeal rulings, and is now the subject of a General Council of the Bar application to have her removed from the roll of advocates.

As the law stands, only Zuma has the power to suspend her, or launch an inquiry into her, or take action generally. He has not done so, despite a request from Nxasana that he suspend her.

Eyewitness News formally lodged a question with the Presidency on Wednesday last week. After sketching the background to this issue, the question went thus:

Why, in the light of all of this criticism of Adv. Jiba, has President Jacob Zuma not taken any action against her, why has he not suspended her, or launched any investigation, or any inquiry, into her conduct? Or is there an inquiry underway on the orders of the President?

The subsidiary question is: Does President Jacob Zuma believe Adv. Jiba is performing satisfactorily in her post?

It took a full week for the Presidency to reply. When it came it took this form:

The appointment of the National Director of Public Prosecutions and his/her Deputies are informed by weighty considerations which are determined by the prescripts of the Constitution, other legislation and the rule of law. The Presidency is aware of the judgements to which you refer and in consultation with the Minister of Justice is giving consideration thereto in order to determine whether any interventions are permissible and/or warranted.

You are equally no doubt aware that the General Council of the Bar of South Africa has also initiated proceedings which appear, on the face of it, to incorporate much of the judicial comment to which you refer. The doctrine of Separation of Powers allows for exchanges between the Judiciary and the Executive, none of which detracts from their respective functions, duties and responsibilities which must be exercised minded as we all are of due process and the safeguard of individual rights.

Uppermost, the interventions of the President will be determined by a need to safeguard and preserve the integrity and independence of the National Prosecuting Authority.

There are many ways to describe that response. “Written by lawyers” would be one of them. “Evasive” was the word chosen by Lawson Naidoo, the executive secretary for the Council for the Advancement of South Africa’s Constitution. But, upon reflection, perhaps the best word is “gobbledygook” [for historical reasons, relating to the name of this publication, we have a special affinity for that word at the Daily Maverick – Ed].

To examine that answer closely, from the bottom up, is to realise that that last paragraph is virtually meaningless. It may also be a fiction, in that that Zuma has shown no interest in protecting the integrity of the NPA up until this point, so why would he start now? You may think that’s a difficult claim to make, but remember the appointment of advocate Menzi Simelane, which was struck down because he was not “fit and proper” for the post? Certainly, that paragraph doesn’t answer the question that was put beforehand.

The middle paragraph starts with a reference to the application by the General Council of the Bar. But it doesn’t add anything other than stating a fact. Neither does the second sentence; it is merely textbook paraphrasing of the Constitution.

There is some meat in the first paragraph. Firstly, the Presidency confirms that it is aware of the rulings against Jiba and of the judicial criticism of her conduct. That could allow someone, if they chose so, to make Zuma act on those rulings, as he is clearly aware of them. The statement then appears to confirm that Zuma is consulting with the Justice Minister on these issues, with a view to perhaps making an intervention.

That may be the case, but the Justice Minister doesn’t have the power to do anything here. All he can do is decide what flavour of popcorn to watch as this movie unfolds. All of the power here is in the hands of Zuma. So why would he need to consult with the Minister? It seems very much like a self-serving answer. And it certainly doesn’t give a time-frame in which any decision will be taken.

If this is a non-answer, why has it been given? Is it because to not answer will lead to more questions, and to answer in a proper fashion would either give the game away, or force someone to act later, when avoiding this might be preferred? Surely this is only because something is being obscured – and that something must be, as Corruption Watch head David Lewis has put it, because “it suits the executive” to have Jiba there. Zuma has much to fear from an independently minded NPA head. Especially with the DA-led review of the decision to withdraw corruption charges against him coming up.

At this point, it is important to remind ourselves that in an issue with plenty of voices, there is one voice that is not being heard – that of Jiba herself. She may well have a perfectly logical and rational explanation for the decisions that she has made. Even if, as the SCA has said, she is wrong when it comes to the law. When she has responded to requests for comment, it has only been by SMS. When she was accused by the NPA itself of refusing to accept a subpoena from a police officer, she said briefly that she wouldn’t comment until speaking to her boss.

This means that we don’t have her side of the story at all. It is a decision she has made, and thus the responsibility for the consequences would appear to rest with her. It does mean, though, that she is not humanised – we have a very narrow view or opinion of her; she is just a cipher. This can create a perception that she is some automaton just doing the bidding of someone else, which surely oversimplifies the situation. It might well be in her interests to find a way to give an interview, even if not with a critical publication, just to give her side of the story in some way. Even if it is just an off-the-record briefing to someone sympathetic.

All of that said, the real question to be asked is the one that we return to often: who benefits? And who is the Number One person benefiting the most by keeping Jiba in her position? One does not have to look too far to answer that. DM

Photo: Deputy NPA head Nomgcobo Jiba (Courtesy of EWN)


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