South Africa

Mokgoro Inquiry

Terms of debate set for Jiba and Mrwebi probe

Archive Photos: Nomgcobo Jiba, August 18, 2015 in Johannesburg, South Africa. (Photo by Gallo Images / Beeld / Cornel van Heerden). Lawrence Mrwebi in Johannesburg, South Africa on May 4, 2010. (Photo by Gallo Images / Foto24 / Herman Verwey)

On the first day of the Mokgoro inquiry into the fitness of Nomgcobo Jiba and Lawrence Mrwebi to hold office, the inquiry’s evidence team built a foundation from which to argue interference in prosecutorial discretion.

In his pursuit to clean up government after the presidency of Jacob Zuma and to also create a tabula rasa in the mind of voters ahead of the 2019 elections, President Cyril Ramaphosa set up a number of inquiries and commissions into allegations of corruption at different levels government — three of which sat on Monday.

While Angelo Agrizzi continued his testimony at the Zondo Commission of Inquiry into State Capture on Bosasa’s alleged corruption ring, Monday saw the first day of the inquiry into the Public Investment Corporation and the start of the Mokgoro Commission of Inquiry into the fitness to hold office of the now-suspended Deputy Director of National Prosecuting Authority (NPA), Nomgcobo Jiba and suspended Special Director of Public Prosecutions Lawrence Mrwebi.

Former Constitutional Court Justice Yvonne Mokgoro is presiding over the inquiry that seeks to determine the conduct and propriety of the two suspended NPA bosses and whether they should be reinstated.

In her opening statement, evidence team leader Nazeem Bawa pointed out that this inquiry was neither a criminal nor a civil investigation.

According to Bawa, there are no onus of proof, no beyond-reasonable-doubt determinations and no balance-of-probabilities findings to be discharged by evidence leaders in the inquiry. Its mandate is to determine the fitness of Jiba and Mrwebi to hold office at the NPA.

First to give testimony was acting National Director of Public Prosecutions Silas Ramaite, who testified on the processes and laws governing the NPA.

Section 21 of the National Prosecuting Authority act of 1998 as set out in section 179 of the Constitution gives the prosecuting authority powers to institute criminal proceedings on behalf of the State as well as to pursue any necessary functions incidental to that of criminal proceedings.

How does that operate in practice?” asked Bawa.

Well, in practice, you must remember that prosecutions take place in many offices of the directors of public prosecutions. The director of public prosecutions in that area of jurisdiction issues an authorisation to a prosecutor to prosecute in that area. You have instances where it might involve the national office, then in that instance, it would be the national director of prosecutions who authorises. But, overall it is the director who issues authorisations to prosecutors in their area of jurisdiction,” answered Ramaite.

Bawa’s initial line of questioning set out the theme of the inquiry, where the powers and jurisdiction of the Deputy Director of the NPA (Jiba’s position) and Special Director of Public Prosecutions (Mrwebi’s position) would later be debated on to determine whether they had the powers to interfere in certain cases in the NPA.

Jiba and Mrwebi were accused of working to protect the former head of Crime Intelligence, Richard Mdluli, who was facing charges of fraud, corruption, murder and kidnapping. They also stood accused of forcing out former prosecutor and current DA shadow minister of justice, Glynnis Breytenbach, after she refused to drop the Mdluli case.

In September 2016, the High Court in Pretoria ruled that Jiba and Mrwebi should be struck off the role of advocates, resulting from an application by the General Council of the Bar, for the mishandling of the cases of ex-Hawks boss Johan Booysen and Mdluli.

In 2017, Jiba was found by the KwaZulu-Natal High Court, Durban, to have pursued charges against Booysen of racketeering, based on flimsy evidence and on a document she could not produce.

And although Freedom Under Law secured an order in December 2017 from the high court that then-president Jacob Zuma should institute an inquiry into the conduct of Jiba and Mrwebi, this order was only acted on by Ramaphosa soon after he took office.

In her questioning of Ramaite on Monday, Bawa sought to set out the roles and responsibilities of the different players in the NPA, the powers prosecutors have to pursue a case and the limitations of those powers.

What would the national director of public prosecutions need to have for purposes of issuing the authorisation of prosecutions?” asked Bawa.

It boils down to the elements of the crime… (they would have to) consider whether the elements of a crime exists and (whether) there is sufficient evidence to proceed with the recommendations,” said Ramaite.

Would that require an examination of the dockets?” asked Bawa.

Certainly, when the matter is referred to the national director it is normally in the form of the prosecution memo which is accompanied by a summary of the docket as well as the docket,” said Ramaite.

These are cases which are dealt with under a heading called consent (to) prosecute in the prosecutorial policy?” asked Bawa.

That is correct,” said Ramaite.

At this point, Bawa wanted to distinguish when it would be appropriate for a deputy director of the NPA or special director of public prosecutions to interfere with the discretion of a prosecutor to decide whether they should pursue the case or drop it.

Regarding this principle of independence which permeates our Constitution in relation to the prosecuting authority, how does that independence manifest to a prosecutor who makes a decision not to prosecute?” asked Bawa.

We must make a distinction between institutional and individual independence. Institutions must consider the law,” said Ramaite.

In which circumstance would a director of prosecutions interfere with a prosecutor’s decision not to follow the prosecution?” asked Bawa.

It is when prosecution policy is not being followed,” said Ramaite.

In an ordinary sense, when one does not have regard to public interest, can you say that when a prosecutor is satisfied that there is sufficient evidence for a reasonable prospect of conviction, a prosecution should normally follow?” asked Bawa.

It applies to all members of the National Prosecuting Authority,” replied Ramaite.

Thabani Masuku, acting for Jiba, cross-examined Ramaite, asking one question:

How much does the public perception influence a prosecutorial decision? I would like to know whether there is a point where you consider public perception a risk to prosecutorial independence?”

Simply put, public perception has no role to play in a prosecutorial decision. No role at all,” responded Ramaite.

Mervyn Rip, acting for Mrwebi, attempted to show that whatever action his client took was within his ambit, drew Ramaite’s attention to an internal NPA policy document created in 2015, that gives policy directives on how the consultative process to determine jurisdiction and prosecution is to be carried out.

According to paragraph 4 of the document, jurisdiction and prosecution “shall be” determined through consultation between the special director or regional head delegated by the special director and relevant DPP.

The key phrase there in that document is consultation. It may mean they agree generally or more specifically to discuss the matter and come to an agreement, sometimes in writing,” said Ramaite.

According to Ramaite, the internal document was created with the intention of simply trying to explain the nature of the consultation and to act as a guideline at coming to an agreement.

But Rip argued that because of the word “shall” in paragraph 4 the consultation is on specific terms rather than just general. Through this, Rip intends to show that consultation was done with regard to specific aspects of a case which handed over jurisdiction to Jiba and Mrwebi.

However, Ramaite contends that the consultation was on more general terms and regarding the terms of the consultation, rather than reaching an actual agreement on the prosecution. The inquiry continues on Tuesday.

Meanwhile, Jiba is likely to find herself the subject of testimony at the Zondo commission. This comes after a Sunday Times report that former Bosasa COO Angelo Agrizzi would testify Jiba and Mrwebi received bribes of R100,000 and R10,000 per month respectively from Bosasa. They both deny the claims, their counsels contended at the Mokgoro Inquiry on Monday. DM

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