Nomgcobo Jiba has lost her application to be reinstated as deputy national prosecutions head, putting her fate in the hands of Parliament.
The embattled former deputy national director of public prosecutions was fired by President Cyril Ramphosa in April. His decision followed an inquiry, chaired by retired Constitutional Court judge Yvonne Mokgoro, that found that she was unfit for her post at the National Prosecuting Authority (NPA).
In the years leading up to the inquiry, Jiba had been roundly criticised in a number of court judgments in politically sensitive cases, with allegations swirling that she was a key figure in the “capture” of the NPA.
Under the NPA Act, Parliament may still reverse Ramaphosa’s decision to fire Jiba.
There is also Part B of her court case, still to come, in which she seeks to permanently set aside her removal, challenging the constitutionality of the NPA Act and to set aside the Mokgoro inquiry.
But in a judgment handed down on Friday, the Western Cape high court rejected Part A of Jiba’s case — where she argued that she cannot be removed until Parliament has spoken. She had asked the court to reinstate her with her full salary and benefits while the process in Parliament unfolds.
Judge Robert Henney said Jiba’s argument on the interpretation of the section of the NPA Act that governed her removal was wrong. “The wording in my view is clear,” said the judge.
He said it was clear from the wording, “and the manner in which the entire section has been constructed”, that the Act envisages two separate procedures – one by the president and one by Parliament.
“This section does not give the power to suspend or remove to any other institution other than the president. The President is charged with the exclusive power to suspend or remove the NDPP [national director of public prosecutions] or DNDPP [deputy national director].”
The Act did not say the removal was conditional upon the approval of Parliament, he said. It was only after the removal, that Parliament’s role kicked in, he said. “The wording is clear, Parliament’s function is not to remove but to restore,” he held.
Henney was careful to steer clear of any pronouncements on Part B of the case but he Jiba had not made out a case that the president and the NPA had acted unconstitutionally in removing her prior to the parliamentary process. To reinstate her, when she had failed to show she had a clear right to reinstatement, would be to breach the separation of powers – as “it is only Parliament that can reinstate or restore her”.