South Africa

Analysis: The end game for Jiba and Co?

By Stephen Grootes 22 July 2015

If there is any institution that embodies the way that President Jacob Zuma has abused some of his powers to protect himself, it is the National Prosecuting Authority. From his first appointment of Menzi Simelane as its head to the dismissal (or resignation with costs, as the legal fraternity might like to call it) of its latest former head, Mxolisi Nxasana, it is difficult to make the case that he has acted ethically, or in the best interests of the country. But now he might be forced to finally do something about Nomgcobo Jiba. By STEPHEN GROOTES.

Within all of this, the perception has been, in most cynical media circles at any rate, that the person who mattered most to him within the National Prosecuting Authority (NPA) has been Advocate Nomgcobo Jiba, one of the four deputy heads of the organisation. Now, finally, it appears her days as royal game, along with the seemingly special status of two other senior officials, may be numbered.

The backstory to this particular issue lies in the two Supreme Court of Appeal rulings in which Jiba is strongly criticised.

In the first, judges condemned her conduct in the decision to withdraw corruption charges against former head of police crime intelligence, Richard Mdluli. In that ruling, they also said that the actions of the NPA’s Specialised Commercial Crimes Unit head, Advocate Lawrence Mrwebi, were incorrect, as were those of the NPA’s North Gauteng head, Advocate Sibongile Mzinyathi.

In the second, judges said Jiba’s decision to do nothing during the Zuma Spy Tapes cases was wrong in that as the acting head of the NPA, she should not have played dead, which had the effect of keeping those recordings from the Democratic Alliance (DA). Then the Durban High Court added to her troubles, striking down her decision to lay criminal charges against KwaZulu-Natal Hawks boss Johan Booysen. After that case, Nxasana had her charged with perjury (it appears an affidavit upon which she said she based her decision to prosecute was only created after she made the formal decision).

After all of that, Nxasana wrote to Zuma and asked him to formally suspend Jiba. Under the NPA Act, only Zuma has the power to do that. But, as we’ve noticed several times before, Zuma did nothing. And, when asked why nothing had been done, the Presidency replied with an answer that appears to say, well, nothing. In the meantime, Nxasana lodged a complaint about the conduct of these three officials with the Bar Council. His hope, it seems, was that if the council had them struck off as advocates, on the grounds they were not fit and proper to hold that title, it would follow that they would not be fit and proper to play that role in the NPA.

But, Nxasana, like all of us, has his price. And he eventually walked away for around 17 million reasons to leave.

Now, Advocate Paul Hoffman, the director of the organisation Accountability Now has stepped in. He has written a letter to Zuma, asking him to either take action or suspend these officials, or to explain why not. The fun part, of course, is towards the end, where Hoffman says, pointedly in legal terms, “Should we not hear from you by 6 August 2015, our rights to institute legal proceedings against you to compel compliance with your constitutional and legal obligations to ensure that the country has a national prosecuting authority that exercises its functions without fear, favour or prejudice, as required by section 179(4) of the Constitution, are reserved”. Or, if you are an ordinary mortal, “act, or we’re going to court, buddy”.

Hoffman has a bit of a track record in this sort of thing. Being a senior advocate, with plenty of experience in these matters, he knows his way around the courts, and the law. He also has a sense of mission. Some would no doubt say that that sense of mission is slightly misplaced, it’s all about trying to stop government, or its president, from doing certain things. Others would say he’s a fearless defender of the Constitution, and simply uses the courts to make politicians do what is right. Your position on this may be influenced by whether your T-shirts are green, gold and black, or a certain hue of blue.

No matter what you think, there is no doubt that his threat is not an idle one. He is clearly planning to go to court. No doubt he is not expecting a reply from Zuma, and may well already have drafted his legal arguments, just for the sheer message it would send by lodging them first thing on the 7 August.

And the thing about this case, is that if it did go to court, it would probably have several interesting consequences

The first is that Zuma himself would have to explain why he did not take action against these three. Bear in mind here, we have a deputy head of the National Prosecuting Authority facing criminal charges.

Let that sink in for a moment.

It would surely be impossible for Zuma to explain rationally why he has taken no action. He may well claim that he’s waiting for the General Council of the Bar process to finish, and so what? The judges in this case would respond in time, but he’s the only person with the legal power to act now, and in this situation there is a legal duty for him to act.

The other consequence could be that Jiba, Mrwebi and Mzinyathi might also have to explain their conduct. They haven’t challenged the decisions of the Supreme Court of Appeal, so it’s really too late for them to do that now. While we’ve said before, that one of the main problems with reporting on this story is the lack of their version, it’s hard to think that a version exists that would explain their conduct. After all, five judges of the Supreme Court of Appeal ruled that their decision to withdraw the charges against Mdluli was plain wrong.

This means that for Zuma, and our prosecutorial trinity, perhaps the best course is for Zuma to simply act. There is precedent here. Zuma had left the position of NPA head vacant for over 18 months, before the slightly clumsily named Council for the Advancement of South Africa’s Constitution lodged an application to compel him to make an appointment. That saw Zuma taking action, and appointing Nxasana.

For Zuma to act might also remove a slight headache for the new NPA head, Advocate Shaun Abrahams. We’ve suggested before that his first test, the decision that could decide whether he will be trusted for the rest of his tenure, will be what he does about Jiba, whether he allows the charges to continue, or uses his legal power as the National Director of Public Prosecutions to withdraw them. Should Zuma act, Abrahams would no longer face that test.

And depending on whether you think he is a Zuma-man or not, that could buy everyone some time.

Hoffman has one last little nugget for Zuma to digest in his letter. Having been a veteran of litigation for some years, and no doubt watched closely how things have spun on for years in the DA’s quest to reinstate the corruption charges against Zuma, he makes a point about the cost of this case, saying, “Should it become necessary to litigate, we can see no good reason at this stage as to why the taxpayer should be mulcted in costs in litigation aimed at getting you to carry out your constitutional obligations properly and rationally. We accordingly put you on notice that we will request costs de bonis propriis against you in such proceedings as we may be advised to launch.”

In case you were in some doubt, all the online dictionaries we consulted say, ‘mulcted’ means, “to extract money through a fine or taxation”. And if it’s been some time since you last did Latin conjugation (amo, amas, amat, amamus, amatis, amant – Ed), ‘de bonis propiis’ means “of his own goods”. In other words, should Zuma decide to argue the case and lose, he might have to pay for it personally. But what Hoffman has probably best succeeded in is putting Zuma under pressure. The end game for Jiba, Mrwebi and Mzinyathi might now be approaching. DM

Grootes is the host of the Midday Report on 702 and CapeTalk, and the Senior Political Correspondent for Eyewitness News. He’s been part of the political hack pack since before the Polokwane Tsunami, and covers politics in a slightly obsessive manner. Those who love him have recommended help for his politics addiction. He quotes Amy Winehouse.

Photo: Advocate Nomgcobo Jiba (EWN)



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