The NPA’s poisoned chalice

2013-09-30 10:00

New boss inherits a divided, distressed authority. We provide a guide to help him through the maze

In less than a week, little-known attorney Mxolisi Nxasana will officially take over at the helm of the National Prosecuting Authority (NPA).

I feel for him. I really do.

The post of national director of public prosecutions (NDPP) is a bit like the real-world equivalent of the defence-against-the-dark-arts job in the Harry Potter series.

Nobody ever lasts.

At the very least, the NPA should have a sign above the NDPP’s office saying: “Abandon hope all ye who enter here.”

If Nxasana has been following news reports, he will know that he is inheriting the leadership of a poisoned organisation, the fate of which appears to be on a knife’s edge. And he doesn’t even have to take the oh-so-negative media’s word for this.

He can read Judge John Murphy’s head-exploding finding this week that acting NPA head Nomgcobo Jiba, Specialised Commercial Crimes Unit (SCCU) head Lawrence Mrwebi and other senior leaders of the NPA “have not demonstrated exemplary devotion to the independence of their offices, or the expected capacity to pursue this (Richard Mdluli) matter without fear or favour”.

They were taken to court by Freedom Under Law and its patron, former Justice Johann Kriegler, to secure a court order stopping the dropping of corruption charges against suspended police spy boss Mdluli.

More than anything else, the ongoing battles among Mdluli, Jiba, Mrwebi and top prosecutor Glynnis Breytenbach will probably be the defining tale of President Jacob Zuma’s administration and his need to control the justice system to ensure corruption charges against him are not returned to court.

The dropping of Zuma’s corruption charges was a moment in which the entire NPA was thrown into crisis from which it has, arguably, never recovered.

The NPA is now run by a cabal not unlike a nouveau broederbond in the criminal justice system. It is all about personal loyalties and protecting incumbent networks.

Those who remember their history well will recall the Ginwala Commission of Inquiry into Advocate Vusi Pikoli’s tough stance on the constitutional independence of the NPA in relation to the prosecution of ANC stalwart and police commissioner Jackie Selebi.

In that instance, it was Menzi Simelane, then the director-general of justice, who breached the independence of the NPA.

There was also the memorable surprise affidavit by Mrwebi – which detailed a senior Scorpions management meeting in which, among others, the Selebi and Zuma/Schabir Shaik investigations were discussed – that mysteriously found its way into the hands of Selebi’s defence team.

Then there was Jiba’s involvement in the arrest of senior prosecutor Gerrie Nel, who was famously responsible for the prosecution of Selebi.

That was part of the now infamous “Operation Destroy Lucifer”, the police’s bid to fight back against the Scorpions.

So serious were the infractions committed by Jiba and Mrwebi that they were both suspended and fighting for their jobs in the Labour Court by 2009.

Shortly afterwards, Simelane, then still director-general, wrote a letter to the NPA advising it to withdraw the disciplinary charges against Jiba and Mrwebi.

We now know that Jiba was going to rely extensively on an affidavit made by Mdluli, which basically exonerated her of wrongdoing. But then Zuma came into office.

The Jiba and Mrwebi cases mysteriously dematerialised, one of the enduring mysteries of our constitutional democracy.

Simelane’s career as the NDPP also took off under Zuma, but was dashed against the rocks by the Constitutional Court because of an adverse finding made against him by the Ginwala Inquiry.

This paved the way for the appointment of Jiba as acting NPA head. She clearly enjoyed presidential favour, as it turned out that Zuma had also expunged the criminal record of her husband, Booker Nhantsi, in September 2010.

Mrwebi was appointed by Zuma to head the SCCU in late 2011.

So this is the world Nxasana will enter. His first big task is to handle the Mdluli matter and its fallout. Will he support prosecutors who have assembled a solid case against Mdluli? Or will he line up behind those who are trying all in their power to oust Breytenbach?

Nxasana is a gamble for both the South African public and for Zuma. This is because there is the possibility, which sometimes happens with the appointment of judges, that a president appoints a person whom he thinks will be pliable, but who turns out to be fiercely independent.

For Zuma, the stakes could not be higher, with the DA’s case to have corruption charges against him reinstated winding its way persistently through the court system.

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