On Wednesday deputy National Prosecuting Authority (NPA) head Advocate Nomgcobo Jiba finally spoke in public about the controversies that have been swirling around her. The last few years have seen two Supreme Court of Appeal rulings in which she's been criticised, a finding by the Durban High Court that she manipulated evidence, and claims that she has been working for President Jacob Zuma at the NPA. Amid all of this, she has maintained her silence. Now, finally, we have her version of events. Well, part of it at any rate. By STEPHEN GROOTES.
We have stated before, several times in fact, that one of the problems with reporting on the entire story around the NPA was that we only had one version of events. Starting with the Supreme Court of Appeal’s finding that criticised deputy NPA head Nomgcobo Jiba for her part in the decision to withdraw charges against then police crime intelligence unit head Richard Mdluli, through the same court’s finding that she was wrong to do nothing during the Zuma spy tapes case, to the Durban High Court judgment that her decisions to lodge charges against KwaZulu-Natal Hawks head Johan Booysen were “arbitrary, offend the principle of legality and, therefore, the rule of law and were unconstitutional”.
Into the void of this silence came Corruption Watch head David Lewis, who said on Tuesday, that the decision by her former underling and new boss, Advocate Shaun Abrahams, to withdraw charges against her was “outrageous”. On Wednesday morning, Freedom Under Law head and former Constitutional Court Judge Johann Kriegler (who brought the case around Mdluli) had told the Midday Report that “this looks and smells like a cover-up”.
This meant that when Jiba took centre stage, she knew that the court of public opinion had not as yet withdrawn any claims against her.
She started by saying that she had a family, with three children, the youngest of whom is quite young. “Everything that happens, and continues to happen hurts them, and it hurts me deeply.” She also took exception to being called names. “I don ‘t look like a diva”, she said.
Well, it’s always tricky for people in the public eye when they have children. But Jiba is a public official, no one forced her to take the job, and unfortunately the fact that someone has children cannot protect them from public criticism. And while one should not really sink to name-calling, in the rough and tumble of our public life, “diva” is hardly that painful. If you don’t want to be in the arena, well, there is a way out of it …
Jiba took great pains to stress that she is independent, and is not the lackey of Zuma. “Whenever I make decisions, I make them on the basis of the evidence which is available before me” was how she put it. She also pointed out: “I have been a prosecutor my whole life”. While she has been a prosecutor for some time, that doesn’t necessarily mean anything. Everyone who makes decisions in this kind of job, no matter how biased they may be, thinks they do so independently. Well, at least that’s what they say in public. Usually, people are judged by what they do, and what they have done in the past. Which means one has to look at her decisions, and make a judgment based on them.
One of the main claims against her has been that she is not fit for her position, because of the criticisms of her conduct by these courts. In other words, if a judge finds that the deputy head of the NPA lied, that would be a basis for an application to find them “not fit and proper”. On this issue, Jiba says simply: “When a judge differs with you, it doesn’t mean that you are committing a crime. It simply means that the judge differs with you on a particular point of law. Nor does it mean that an attorney or an advocate who is criticised by a judge for one reason or another, he is suddenly committing an offence, it can’t be … there isn’t a judge in any of those judgments who has said I’m not fit and proper.”
This is true, no judge has said (yet) that she is not fit and proper. However, that doesn’t really give us an explanation of why she did what she did. If she disagreed with those rulings, why not appeal? The NPA could have, and didn’t, which means those findings stand, and are now the basis of the application by the General Council of the Bar to have her struck off as an advocate. If that action succeeds, an action to remove her from her current position would likely follow.
What Jiba does say, is that her reasons for making these various decisions have been explained in her response to that GCB application. Strangely, she did not actually use the opportunity of her press conference, which was broadcast live by ENCA, to go into those reasons. Whether that’s just the lawyer in her, or because of advice she received, or for some other reason, we don’t know at this stage. But it seems that in those papers she said it was then NPA head, and her opponent, Mxolisi Nxasana, who stopped her from appealing the Durban High Court judgment in the Booysen case. She also said he prevented her from getting crucial evidence from a witness outside the country. Jiba also indicates that she was not involved in the Mdluli decision, and that she behaved cautiously in the Zuma spy tapes case, and did not want to give an indication of support to either Zuma or the Democratic Alliance.
While it is almost certainly true Nxasana did overrule her on the Booysen issue, it would seem unlikely that an appeal would succeed, considering the language used by the judge in that case. On the other issues, a judge, or a series of them, will have to decide. But Jiba was either running the NPA as an acting head, or playing a role in most of its major decisions during the Mdluli and spy tapes matters, so it would seem she does have to take some responsibility for the decisions that were made.
Through all of the controversy, one of the main issues around Jiba has been the context of the NPA. Zuma clearly has a material interest in who’s running the place; he is worried about his own freedom. Jiba’s husband had his criminal record expunged, by, you guessed it, Zuma. Which led to the question of whether she was acting for Zuma, and whether she could really act independently in the NPA.
This was her response: “I am not working for President Zuma. I can’t work for President Zuma, because I am a prosecutor, as I said to you, my responsibility is to prosecute without fear, favour or prejudice. If my husband’s record were expunged, it’s none of my business. I have no criminal record that needed expungement. If those considering the application thought it fit for expungement, it’s none of my business.”
Now, every marriage is different, and no outsider can ever really know what is going on in someone else’s marriage. But this does seem a little hard to believe. How can two people who are married really be considered completely separate in their professional lives? How could someone who has to make a decision not consider what has been done for their life-partner? Is it not fair to say that a better answer is required than to simply say “it’s none of my business”?
If you have been a prosecutor for your “whole life”, can you really be happy that your life-partner is a criminal? At some point, for your own integrity, did you not need to decide on your calling as a prosecutor or your husband?
In the end it comes down to that old adage about judging someone by the company they keep. DM
Further watching: The full press conference at ENCA.com
Photo of Nomgcobo Jiba by EWN.
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