In the tangled web of the National Prosecuting Authority’s history it has often seemed as if the top officials involved owe more allegiance to particular political personalities than to the rule of law.

From Bulelani Ngcuka’s interference in the decision to charge President Jacob Zuma (on behalf of a currently popular Facebook newsletter writer), to the defense of deputy NPA head Advocate Nomgcobo Jiba, decisions appear to be made for political reasons; often only for political reasons. But, as the DA gets ready to go to court in a bid to force Zuma to suspend or remove Jiba, it has emerged that another deputy, Willie Hofmeyr, has signed a dramatic affidavit in which he has deliberately taken sides against Jiba and his boss Advocate Shaun Abrahams.

The situation within the NPA is now so complicated that almost any attempt to simplify things is going to land the author in the line of fire. But, briefly (and therefore almost certainly missing out on something important) here is the current situation:

The NPA has four deputy heads, which are appointed by the President, and cannot be fired by anyone except the President after a commission has investigated their conduct. Over time there have been more and more complaints that Jiba has been acting to defend Zuma. The Supreme Court of Appeal has criticized her conduct in the Zuma Spy Tapes case and her decision to withdraw charges against Richard Mdluli. Crucially, former NPA head Mxolisi Nxasana (he who is now R17 million richer after accepting a payout to leave) lodged perjury charges against her, because of the way she laid charges against then KZN Hawks head Johan Booysen. After Nxasana left, Abrahams announced that charges against her were being withdrawn, based on the decision of another prosecutor in the NPA.

Confused? If not, it’s only because you haven’t been paying attention.

It’s at this point that Hofmeyr makes his intervention. He has written and signed an affidavit in which he says Abrahams is wrong to claim that he did not make the decision to withdraw the charges against Jiba.

Abrahams had said that decision was made by Advocate Marshal Mokgathle, and he had merely endorsed the decision. Hofmeyr includes an email from Mokgathle in which he says he is waiting for the decision from the office of the NDPP (or the National Director of Public Prosecutions, i.e. Abrahams). This would appear to be damaging to Abrahams.

But Hofmeyr is just getting warmed up. He points out that he has been advised he has a duty to make this information available to both sides in this dispute (the DA and the NPA) as he must set the record straight.

He then explains how, when the time came to make the decision about charging Jiba, Abrahams disregarded another legal opinion from two other NPA prosecutors. One of them is Jan Ferreria, who was the lead prosecutor in that case and is “widely regarded as one of the best and most experienced prosecutors in the NPA”. This confirms an earlier report by EWN three months ago that this had happened. It also seems to suggest that Abrahams was looking for the legal opinion he wanted, rather than proper honest legal advice.

Hofmeyr goes on to explain a signed statement by “Mr. Terence Joubert, a senior employee in the Security and Risk Department of the NPA”. Joubert tells how he and other officials had performed investigations at the request of Jiba “with a view to bring about Mr. Nxasana’s removal from office”.

This claim is fairly explosive. It was only a few months after Nxasana was appointed NPA head by Zuma that claims emerged he had once been charged with murder. In a separate case he had been accused of assaulting an ex-girlfriend. At the time it seemed impossible to understand how background vetting had not picked up these cases.

Now we have a better understanding of how someone was sent to find some dirt, and when they did, it was made public.

Hofmeyr then goes for the jugular, saying that Abraham’s conduct “suggests to me that there is a systematic pattern of protecting Ms. Jiba and others improperly, not just in this case, but in others as well. It suggests that he has chosen to align himself with their agenda”. He then says of Jiba that “While she was acting NDPP (National Director of Public Prosecutions), she openly boasted about her close relationship with the then Minister of Justice and how she could persuade him to do whatever was needed for the NPA.”

“The attempts by Ms. Jiba to engage in activities that are in support of political groupings are not new,” says Hofmeyr.

Hofmeyr is playing with fire. If it were just one NPA deputy-head against another, it would be unedifying enough to justify headlines about infighting at the top of the most important criminal justice institution we have.

The discord that would be created would rock the institution to its core.

But Hofmeyr is going much further. He has publicly and in papers prepared for a court case, called Abrahams, his boss, a liar. But Abrahams is not just some ordinary politician or creative accountant. He is a person who holds a great legal office, someone who, as the law puts it, has to be “fit and proper” for the post. Just the accusation, on a signed affidavit, that Abrahams is a liar could conceivably be enough for someone to mount a legal challenge to his continued presence in this position.

As a result, it would be completely natural to presume that Hofmeyr can look forward to a short walk from his office to the front gate of the NPA’s Silverton campus, with the stimulating company of two rather large uniformed individuals supporting his elbows.

But that is unlikely to be the case.

Firstly, the DA, Freedom under Law, the Council for the Advancement of South Africa’s Constitution and Corruption Watch have all called for Jiba to be suspended or removed. The DA is now going to court to force that action (the application was supposed to be heard on Tuesday, but has been postponed). It would completely reveal the lie for Zuma to act against Hofmeyr but not against Jiba, after so many calls for her to go. He could be vulnerable to a court challenge that his decision is irrational, after he failed to act against her.

But that’s not the real reason Hofmeyr’s car will occupy its Silverton parking bay for some time to come. The real reason is that he played a crucial role in the decision to withdraw the corruption charges against Zuma in 2009. At the time, it was Zuma’s attorney, Michael Hulley, who approached then-acting NPA head, Advocate Mokotedi Mpshe, with the information that recordings existed of Ngcuka and the Scorpions head at the time, Leonard McCarthy, discussing the timing of the charging of Zuma. Mpshe sent two people to the State Security Agency to listen to the recordings. One of them was Hofmeyr.

Hofmeyr, it seems, is still perfectly happy with that decision. It is he who has signed some of the NPA’s affidavits in response to the DA. It would be rather unfortunate for Abrahams and Zuma for him to leave the NPA now. Who knows what would happen, or how he would react?

What if he suddenly had a “crisis of conscience” or something that made him think again? What if he found religion and said that he should never have done any of this, or that he was coerced into it, or if he went on the John Robbie Show and begged forgiveness and asked to testify for the DA?

It does, of course, take serious guts to put yourself in the position that Hofmeyr is in now. It may be that his role in the Zuma Spy Tapes saga and the DA’s applications to reinstate the corruption charges against Zuma have given him a keep-your-job card in the first place.

But that doesn’t mean he gets away scot free either. If he is motivated by conscience to come forward now, why has it taken so long? On his own version he must have known for years about Jiba’s “boasts”, and about the political intrigue that has occupied the NPA for so long.

This leads us to his lament about the way he has been treated, about how he has been “maligned” and that he has been moved to the Legal Affairs Division of the NPA. It is, for him, a dead-end job. One has to wonder if it is simple self-interest that has made him act now. Or if indeed he has been struggling with his conscience for some time. No doubt Abrahams and Jiba will have one version and the DA another.

In a way the motive almost doesn’t matter. It now seems certain that Abrahams is not going to fulfill his original promise to be neutral. When he was appointed, he even said he would have regular press briefings, every six weeks or so. That has not happened. He also appeared to know how difficult the job he was moving into was; he promised to introduce transparency.

Now, with the information we have, the case that he has indeed decided to “align himself with the agenda” of protecting Jiba and of playing political games, seems to be very strong indeed. One wonders if he ever thinks of his oath, and whether he thinks he is living up to the promise he made that he would “enforce the Law of the Republic without fear, favour or prejudice.”

Or, whether he will, one day, publicly justify his actions. DM

More reading:

• NPA realignment, step 2: Willie Hofmeyr out of Asset Forfeiture Unit in Daily Maverick;

• The Case for Nomgcobo Jiba in Daily Maverick;
• Jiba, in her own words in Daily Maverick;
• The appointment of Shaun Abrahams in Daily Maverick.

Photo: Willie Hofmeyr (Sapa)