Soon after Jan Ferreira, senior deputy director in the Specialised Commercial Crimes Unit (SCCU), was sworn in to testify on the third day of the Mokgoro Inquiry, Thabani Masuku, representing Jiba, requested that the witness’s testimony not be allowed as he might unfairly prejudice his client in a criminal case the NPA may prosecute.

According to Masuku, there is a pending possible criminal case against Jiba at the office of the acting National Director of Public Prosecutions. And because of this, it would be inappropriate for Ferreira, who at one point was the prosecutor handling the case, to testify at the inquiry.

“It is inappropriate for him, as a potential prosecutor in a case, to come and testify,” said Masuku. If the prosecution went ahead, “then we have a problem as it limits how far we can go with him”.

The point Jiba’s counsel wanted to drive home was that if Ferreira is allowed to testify while there is a criminal case pending, it might prejudice Jiba and put her in a position where she unwittingly incriminated herself. And without knowing it, she would have given up her right to remain silent.

However, evidence team leader Nazeem Bawa said given the scope of the inquiry, it was impossible to avoid the subject matter and not deal with Ferreira’s testimony. In order to make a proper decision, the panel needed to consider the evidence before it — including Ferreira’s testimony.

“The inquiry can’t avoid dealing with those issues; we accept that those are his views and you must make an assessment on those views based on the evidence,” said Bawa.

“Will it not … make the matter difficult for the parties when they examine advocate Ferreira?” said inquiry chair Justice Yvonne Mokgoro.

Bawa said the content of Ferreira’s affidavit was already public knowledge and contained in the Freedom Under Law v National Director of Public Prosecutions court papers. This had all been submitted as part of the evidence team’s documents, she said.

Masuku said the inquiry had to be uncompromising in its quest for fairness. It would be unfair to expose Jiba to a situation where she did not know how far to go in cross-examining the witness as it could expose her to a potential criminal case.

“If the National Director of Public Prosecutions has made a decision to prosecute, then it is not fair to make Jiba answer to a potential prosecutor at her criminal trial,” said Masuku.

Justice Mokgoro said the issue was difficult to rule on because there was much information they were unaware of. In order to proceed with Ferreira’s witness testimony, the presiding panel needed to be furnished with the full picture.

She adjourned the inquiry for the day to allow the panel to deliberate.

“We have considered the submission made by the legal representatives and the evidence team and we are concerned that we have to make a ruling on an issue that has not been decided on,” said Mokgoro.

The parties were asked to submit to the panel their brief heads of argument by 8 am on 24 January, providing details on how the right to a fair trial would be jeopardised through testimony. Furthermore, the parties needed to confirm with the National Director of Public Prosecutions whether a decision to prosecute had been made.

In 2015, former National Director of Public Prosecutions Shaun Abrahams withdrew charges of perjury and fraud against Jiba but this decision was set aside in 2017.

The inquiry continues on Thursday 24 January at Centurion. DM