The Democratic Alliance wants the Western Cape High Court to order that the deputy national director of public prosecutions, Nomgcobo Jiba, be suspended and subjected to a disciplinary inquiry because of her conduct.
She had allegedly lied to the court, failed to comply with court orders, ignored deadlines, failed to exercise an independent mind and shielded “irrational and illegal actions from judicial scrutiny”, according to the DA.
Jiba had incurred the criticism of 12 judges, on four benches, in three different matters, said opposition party justice spokesperson and former prosecutor Glynnis Breytenbach on Monday.
But who is Jiba and why is the DA determined to see her suspended?
- Jiba hails from the Eastern Cape where she started her career as a prosecutor in Peddie in 1988.
- After working in the Tsolo and Mthatha Magistrate’s Court in 1997 she resigned and did her articles for the attorney’s profession with the firm Qunta Ntsebeza.
- She qualified as an attorney in 1998 and in 1999 moved to Deloitte & Touche as a senior forensic consultant working on fund analysis, to detect fraud or corruption. In the same year she joined the investigating directorate for serious economic offences in Pretoria as a senior state advocate.
- When the Scorpions were disbanded in 2009, she went to the specialised commercial crimes court in Pretoria, where she was involved in the prosecution of serious and complex commercial crime cases, according to a biography on the National Prosecuting Authority website.
The Mdluli headache
The Lieutenant-General Richard Mdluli case has been a headache for her.
In this case nongovernmental organisation Freedom Under Law (FUL) applied to review and set aside a decision taken by Advocate Lawrence Mrwebi, a special director of public prosecutions, to withdraw two sets of criminal charges against Mdluli, who was the head of police crime intelligence.
Breytenbach, now an MP for the DA, opposed the decision to drop charges and wrote a memorandum to Jiba asking her to review the decision not to prosecute.
Jiba did not review it. It was that case that ultimately led to Breytenbach going through her own disciplinary inquiry and eventually leaving the NPA to become a politician.
The High Court in Pretoria criticised Jiba for delays in the FUL application, for filing incomplete papers, and for saying she did not get Breytenbach’s memo.
According to the DA’s court papers, the high court and the Supreme Court of Appeal mentioned a letter Mdluli wrote to President Jacob Zuma saying: “In the event that I come back to work, I will assist the President to succeed next year”. The ANC was to have its elections.
The Booysen matter
Major General Johan Booysen was a major general of the South African Police Service and Jiba issued two written authorisations to charge him with contravening the Prevention of Organised Crime Act 121 of 1998 related to racketeering.
Booysen sought to review and set aside those authorisations on the grounds that they were irrational. He argued that the material before Jiba when she took the decision did not include any evidence that he had contravened the relevant provisions of the Act.
In her answering affidavit, Jiba alleged that, in addition to the contents of several dockets, she relied on what she described as four statements made under oath that she attached to her affidavit. The difficulty, as Booysen pointed out in reply, was that one of the documents was dated two weeks after she took her decision.
She was later criminally charged for perjury for lying under oath over this. There is a suggestion that she did this because Booysen was a witness against businessman Thoshan Panday and police procurement chief Navin Madhoe who were allegedly part of a R60 million accommodation scam ahead of the 2010 Soccer World Cup.
Panday and Madhoe allegedly claimed Booysen had taken a R2-million bribe to backdate an interception document, which would bring the legality of the alleged evidence against them into question.
Booysen denies this.
Zuma spy tapes
The DA won a court application to review and set aside the decision of the then acting NDPP, Mokotedi Mpshe, to drop corruption charges against Zuma.
The SCA ordered the NDPP to produce and lodge the record of the decision with the registrar of the High Court. Jiba said she would hand over transcripts of the “spy tapes” if Zuma’s legal team didn’t mind. “That was not only impermissible, it seriously damaged the credibility of the NPA,” the DA said.
Jiba and the law
The NPA commissioned an opinion from senior counsel on what to do about Jiba given the criticism from the judges.
Counsel advised that the NPA institute criminal charges of perjury against her, request the GCB to seek her removal from the roll, and ask the president to suspend and investigate her in terms of s 12(6) of the NPA Act.31.
- Between June 2014 and May 2015, then head of the National Prosecuting Authority, Mxolisi Nxasana, made repeated requests to the minister of justice and Zuma to act against Jiba. According to the court papers, Nxasana said Jiba refused to accept his authority.
- Zuma suspended Nxasana instead. Nxasana left with a golden handshake of R17 million and Advocate Shaun Abrahams took his place.
- One of the first things Abrahams did was promote Jiba to national head of prosecutions. The perjury case against her was also withdrawn because he said it had no prospect of success.
- The DA was outraged and asked Zuma for the record of his decision to not take action against Jiba.
He sent back two notes – the letter from the DA asking for the records and a letter saying he was of the view that none of the jurisprudential grounds existed that warranted her suspension. He wanted to wait for the outcome of a General Council of the Bar application to the High Court that she be struck off the roll of advocates. Later he said that he had accepted oral evidence from the justice minister who had received it from Abrahams.
- The DA believes this case is ultimately about the independence and integrity of the NPA.
- It claims there was evidence that Zuma had an ulterior purpose in not acting against Jiba, although it does not know what that is.
Jiba’s husband, Booker Nhantsi, was reportedly pardoned by the president after being sentenced to five years, two suspended, for theft from a trust account.
Update: The application to have Jiba suspended was postponed on Tuesday because the judge’s mother had died. – News24