Freedom Under Law counsel Max du Plessis told the Mokgoro Inquiry on Thursday that the “perception of independence” at the National Prosecuting Authority (NPA) had been “irredeemably undermined” by the fact that both Nomgcobo Jiba and Lawrence Mrwebi “have managed to stay in office this long” when there was an “avalanche with respect to judicial criticism” by the courts dating back to 2013.

Du Plessis’ testimony came on the final day of the inquiry set up to determine whether Jiba and Mrwebi are fit and proper to hold office at the NPA.

Du Plessis said the judgments that arose from Freedom Under Law court cases against the NPA had shown how there was prosecutorial interference in high-profile cases. In addition, adverse findings were made by the courts against Jiba and Mrwebi which “have a direct effect on and erodes public confidence in the NPA as a law enforcement agency”.

The Mokgoro Inquiry, which has been set up by President Cyril Ramaphosa to determine whether Jiba and Mrwebi should be reinstated into the prosecuting authority after years of scandal, has over the past five weeks heard a number of testimonies from several people exposing political interference in high-profile cases.

Jiba and Mrwebi are accused of playing a role in attempts to derail the corruption charges against former police commissioner Jackie Selebi and the fraud and corruption charges of former Crime Intelligence boss Richard Mdluli. Jiba is also alleged to have illegally instituted racketeering charges against former KwaZulu-Natal Hawks boss Johan Booysen.

Freedom Under Law has taken the NPA to task in a litany of court cases which have led to damning judgments against Jiba and Mrwebi’s role in politically motivated decisions when instituting prosecutions.

The judgments against Jiba and Mrwebi, said Du Plessis, had always been enough to realise that they were not fit for their jobs. However, they had survived through protection from former president Jacob Zuma and former NPA head Shaun Abrahams, despite findings illustrating the reputational damage done to the NPA.

Du Plessis testified how on 23 September 2013 there had already been an “adverse comment” by Judge John Murphy in the Pretoria High Court regarding Jiba’s fitness. A “damning and disquieting comment” had been made on 26 February 2014 by Judge Trevor Gorven during the Mdluli corruption case.

“The judgments suggest unfitness in the way they conducted themselves in the courts,” said Du Plessis.

Du Plessis stressed how “public perception is affected” by their continued incumbency in the NPA. He said that allowing Jiba and Mrwebi to remain in office would not secure the “depoliticisation” of the prosecuting authority.

“The judicial pronouncements are direct evidence that a person lacks the requisite honesty, integrity and conscientiousness to occupy the relevant office,” said Du Plessis.

Freedom Under Law had previously, through the courts, demanded that Zuma institute an inquiry into Jiba and Mrwebi’s fitness, which the former president continuously failed to do. At the same time, Abrahams withdrew fraud charges against them.

These “binding and non-appealed judgments” confirm the stain on the NPA, Du Plessis said.

At that stage, Jiba’s counsel stepped in to object that Du Plessis’ testimony had gone further than he had been invited to submit.

According to Norman Arendse, acting for Jiba, Du Plessis had been asked to submit information that would help the panel with the standards to determine Jiba’s fitness rather than introduce new evidence in an effort to implicate Jiba further.

“He is clearly more than encouraging you to find Jiba not to be fit and proper based on several judgments and not on evidence,” said Arendse.

Panellist Thenjiwe Vilakazi, assisting Justice Yvonne Mokgoro, told Arendse that the facts before the courts which Du Plessis had mentioned were also accepted as evidence in the inquiry.

Arendse said Du Plessis was interpreting the facts for himself and making a judgment taken out of context.

He said Du Plessis was not a witness subject to cross-examination, but had been asked to assist the panel in defining the standard by which Jiba should be held to account. However, he had gone further by attempting to persuade the panel to find Jiba guilty.

Du Plessis argued that his submission was for when the panel went behind closed doors to discuss the fitness of Jiba and Mrwebi to hold office at the NPA — for it to keep in mind the decision by the courts that Abrahams “unlawfully withdrew charges” and that the former president protected them by not launching an inquiry.

In his closing argument, Arendse argued that while there may have been mistakes by Jiba in her leadership or in decisions she had taken, that could never be sufficient to conclude that she was no longer fit and proper. The evidence placed before the inquiry was circumstantial, he said.

“There has, however, been no evidence of any involvement by her in an abuse of power and in the furtherance of political agenda.”

Evidence leader Nazreen Bawa will submit her closing remarks in writing. After 60 days the panel is expected to submit its recommendations to the president. DM