While not completely out of trouble, Nomgcobo Jiba's future looks bright again
- Stephen Grootes
- South Africa
- 19 Aug 2015 01:00 (South Africa)
When the history of the Zuma Era is written, the story of Advocate Nomgcobo Jiba will make a fascinating chapter. For some, she is the perfect example of someone being appointed to a high position for the simple purpose of protecting Number One. For others, she is the victim of a media-led conspiracy, someone denigrated and criticised for simply doing her job, maybe because she is a black woman. Where you fall on the issue is likely to determine whether you believe the decision to withdraw the criminal charges against her is a vindication or proof that the rule of law no longer holds sway in South Africa. And whether you believe that the National Prosecuting Authority and its new head are now just the playthings of President Jacob Zuma. By STEPHEN GROOTES.
On Tuesday, relatively new National Director of Public Prosecutions Advocate Shaun Abrahams held what was described by the National Prosecuting Authority's (NPA’s) head of communications as an "impromptu" press conference. Once the NPA's auditorium was full of its own staff and journalists, he began. After a little bit of a go at the media (and particularly the City Press which suggested two weeks ago that certain big decisions has been made) he made his announcements. No, he had not taken a decision to prosecute former South African Revenue Service (Sars) deputy commissioner Ivan Pillay. No, there was no decision yet to prosecute the former head of the Hawks, Anwa Dramat.
But there was indeed a decision about Deputy Director of Public Prosecutions Nomgcobo Jiba. Not taken by Abrahams, you understand, but by the regional head of the specialised Commercial Crimes Unit, Advocate Marshall Mokgatle. Abrahams said Mokgatle looked at all the evidence (evidence from three witnesses was outstanding when the original decision was made) and said there was no chance of a successful prosecution. As a result, the charges will be withdrawn in court on Wednesday, August 19.
Abrahams pointed out that the main reason for this is a clause in the Prevention of Organised Crime Act, which says: "Any person generally or specifically authorised to perform any function in terms of this Act, shall not, in his or her personal capacity, be held liable for anything done in good faith under this Act." This means that while Jiba may have done something wrong, she cannot be held liable for it. If the facts of the matter point to her wrongdoing, she is still safe.
That is the law, and that is the fact of this case. Now for the context – if only as a lesson to those who believe journalists should not analyse, think for themselves, or be anything more than a fact-reporting robot.
Jiba was charged by the former head of the NPA, Mxolisi Nxasana. It seems to be no secret that the two of them had very little time for each other. He charged her after the Durban High Court threw out her decision to charge the KwaZulu-Natal head of the Hawks, Johan Booysen. The judge in that case said the decision to charge Booysen was illegal. The main problem was that Jiba had signed off on the decision to prosecute. That document explains that the decision to prosecute was based on evidence that did not in fact exist at the time. Which means that, strictly speaking, she is guilty of perjury and fraud. Some would say that this was a simple mistake. Others, that this is the NPA, believe it's way too important a decision to make mistakes with, and that everyone involved in the NPA needs to do their homework properly. And of course others would simply ask about motive: Why, why would Jiba have done this? What was the motive in trying to get Booysen?
When Abrahams was appointed to this post, we suggested that the first test of the question of whether he would be a "Zuma-man", someone in the position just to help President Jacob Zuma, would be this very decision on whether the case against Jiba should proceed or not. And that based on that, we would probably be able to predict whether he would ever reinstate the corruption charges Zuma once faced. The fact that he has decided to withdraw the case against Jiba would appear to show that in fact he is very much Zuma's man.
However, his supporters would point to the letter of the law, and say that if the case was not going to be winnable in court, why continue? They would also say that Nxasana had motives of his own in charging Jiba in the first place.
All of that could be true. Except for the fact that it now seems that Abrahams has in fact promoted Jiba. There has been a re-organisation of the NPA, he said, but he would not explain who was moved, where to, or why. In fact, he wouldn't take any questions at all. But, the City Press was already reporting that Jiba is now in charge of "Prosecution Services". Which may in fact mean that almost all prosecutions carried out by the NPA come under her purview. Certainly it means that the empire over which she presides is growing. And for someone in Abrahams’s position to say at a press conference that there have been some internal changes at the NPA and then not explain them is just silly. We are all going to find out anyway.
What are you hiding, Mr Abrahams?
However, Jiba's new empire may not last forever. While she is off the hook as far as these criminal charges are concerned, there are several other proceedings in the pipeline. Accountability Now's Paul Hoffman has confirmed he is still waiting for a decision by Zuma on whether he will take action against Jiba, based on the rulings of the Supreme Court of Appeal in the cases relating to Richard Mdluli and the Zuma Spy Tapes. In both those cases judges criticised her conduct. Hoffman has confirmed that if Zuma doesn't take action (and he is the only person with the legal power to suspend or remove Jiba) he will go off to court to force him to do so.
Meanwhile, the General Council of the Bar has started its own application, based on those rulings, to have Jiba struck off the roll of advocates. While being struck off may not necessarily mean she no longer qualifies for her job, a finding that she is not "fit and proper" to be an advocate may mean she could not be considered "fit and proper" to be the deputy head of the NPA.
While Jiba was perhaps the main aspect of Abrahams' announcement, he also confirmed that he is not as yet formally charging Pillay for what happened at Sars. While it's a complicated story involving claims of a rogue spy unit, suggestions that Zuma only moved against Pillay because of a fight over an unpaid excise bill for African National Congress T-shirts, and, of course, sex, charging Pillay would be a brave move. Up until this point, he has maintained his silence, despite the claims against him. It would seem that his silence is part of his settlement agreement. But, if he were charged, he would be forced to give his version of events. That could involve testimony about what he believes actually happened. While that may not be very damaging to Abrahams, it could be damaging to Zuma. Which is perhaps why it has not yet happened.
And then there's the claim that Gerrie Nel, yes, that Gerrie Nel, could be charged. It has been suggested that he was involved in bugging the office of then NPA head Advocate Vusi Pikoli back in the run-up to Polokwane. The problem Abrahams faces here is that to formally charge the world's most famous prosecutor is to invite a lot more attention than you might like. Nothing would get the problems of the NPA onto the lead news cycle on CNN more quickly than that. And there is probably no one who wants that to happen at the moment. Especially with an appeal looming in the case that made Nel so famous.
It is important, once again to remember more about the context of the NPA. Zuma has used every legal instrument to stop the Democratic Alliance's (DA’s) bid to reinstate the corruption charges against him. He paid R17-million worth of government money to get rid of the last NPA head, who seemed a little too independent. His appointment before that was struck down by the Constitutional Court. Abrahams used to work under Jiba, in her office. Jiba's husband had his criminal record expunged by Zuma. And she, as yet, has not publicly explained her decisions for obstructing the DA’s efforts to get the Zuma Spy Tapes, or why she did not follow the law in the Mdluli case.
It is pretty easy to work out why all of this is happening. If only you know the context. And analyse. DM
Photo: Advocate Nomgcobo Jiba (EWN)