Apparently blindsided by the damning testimony of former national director of public prosecutions Mxolisi Nxasana on Wednesday, Nomgcobo Jiba’s legal representative rushed to the State Capture commission after lunch to apply for any further testimony implicating her to be held back until she received formal notice with details of the testimony.
Nxasana had earlier implicated her in an alleged plot to ensure his removal from the job before he even assumed office in October 2013.
No notices were issued to implicated parties ahead of Nxasana’s testimony because his statement arrived only late on Tuesday 11 June 2019.
Senior advocate Vuyani Ngalwana said Jiba and her legal representatives were alerted to Nxasana’s testimony a mere five minutes before he stepped into the witness box on Wednesday morning.
He emphasised his understanding of the rules of the commission, which includes that implicated parties be given timeous notice of when a witness who may incriminate them would appear, and then to be provided with a copy of their statement.
This is to ensure they are given a fair opportunity to consider the allegations and to decide whether they may wish to provide a version to the commission and/or to apply to cross-examine such a witness.
Ngalwana said while there was no impediment to Nxasana resuming his testimony after lunch, it would be more acceptable that he be limited to matters already in the public domain.
It would otherwise be difficult for Jiba’s legal team to discern which of his claims would be new until such time as they were provided with a copy of his statement or at least those parts that implicated her.
He requested that Nxasana be allowed to continue with his testimony provided that elements implicating Jiba be held back for now.
“I’m not saying it should be excised, but introduce it later.”
One of the concerns that Ngalwana presented to Deputy Chief Justice Raymond Zondo related to public perception of untested allegations presented at the commission, saying that by time the implicated party responded, the damage was long done.
“Any allegation, not even proven evidence, against a person (made at the commission) is taken by society to be the truth.”
He said another issue, a “fear of Ms Jiba” and her legal team, related to the timing of Nxasana’s evidence.
President Cyril Ramaphosa has relieved her of her duties as the deputy national director of public prosecutions following an inquiry into her fitness to hold office.
But that decision has still to be considered by the National Assembly – albeit with some debate about the role of Parliament in the decision, Ngalwana said.
He suggested that Nxasana’s testimony could well impact on the approach or decision to be taken by Parliament.
In response, senior advocate Paul Pretorius, head of the commission’s legal team, rejected outright that this had been a factor in determining the date of Nxasana’s appearance at the commission.
Nxasana appeared as a witness at the specific direction of Justice Zondo after earlier testimony about the paralysis that had crept into the National Prosecuting Authority over the course of several years and how appointments had impacted on decisions on who to charge or not.
Nxasana briefly resumed his testimony once Justice Zondo ruled that he may continue on condition that the names of implicated parties be withheld at this stage.
He is scheduled to return to the commission at a later stage to testify on those matters.
The remainder of his testimony related to his premature departure as the prosecutions boss in 2014 and a controversial multimillion settlement agreement negotiated at the behest of former president Jacob Zuma. The commission was then reminded of a Constitutional Court ruling which essentially found that Zuma had “bought” Nxasana out of office.
The judgment by the country’s highest court noted that throughout the entire negotiation process for Nxasana to vacate office, he had unequivocally said he didn’t want to resign and that he saw himself as fit for office.
And, while he indicated his preference, that allegations that had been made against him be tested in a formal process, Zuma was instead set on removing him by whatever means – suspension on full pay, an aborted inquiry into his fitness to hold office and mediation until Nxasana was eventually presented with the proverbial blank cheque — a document agreeing to leave at a price, the amount left blank so Nxasana could pick a number.
The inquiry resumes on Thursday when former SAA treasurer Cynthia Stimpel is scheduled to testify. DM
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