What will Zuma do about NPA duo?

2016-09-18 06:09
Nomgcobo Jiba

Nomgcobo Jiba

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The landmark judgment handed down this week in the High Court in Pretoria against advocates Nomgcobo Jiba and Lawrence Mrwebi must be lauded as it is not only important for the legal profession in particular, but it serves to send a clear message about the high standard expected of the officers of courts.

It is required of attorneys, advocates and prosecutors to always conduct themselves honestly in court and elsewhere.

These people have a duty to assist the courts by advancing arguments in an honest manner and without concealing any material information, putting the courts in a better position to make proper decisions.

The events that led to this week’s scathing judgment disbarring Jiba and Mrwebi are regrettable, especially considering the positions they occupy in the National Prosecuting Authority (NPA).

Jiba is deputy national director of public prosecutions and Mrwebi heads the specialised commercial crimes unit.

Their conduct was found to be unbecoming, particularly with regard to the way they handled the case of suspended crime intelligence boss Richard Mdluli.

The two were found to have acted in bad faith by protecting Mdluli from prosecution on charges of fraud and corruption.

This rendered them no longer fit and proper to continue practising as advocates, and the court ordered that their names be struck off the roll of advocates.

Of particular concern now is what will happen to these individuals. Are they going to continue to perform their duties at the NPA, despite the fact that their names have been removed from the roll?

The requirements for any person to be appointed as the deputy national director of public prosecutions and as the special director of public prosecutions – the posts held by Jiba and Mrwebi, respectively – are that they must:

. Possess legal requirements that would entitle them to practice in all courts in the republic; and

. Be fit and proper persons, with regard to their experience, conscientiousness and integrity, to be trusted with the responsibility of the office concerned.

So if Jiba and Mrwebi cease to be fit and proper, as the court has found, they cannot be entitled to practise in all courts in the republic. Hence, they cannot continue to be employed in their current posts at the NPA.

Having said that, I am, however, mindful of the fact that they have the right to appeal the judgment if they feel that the court has erred and another court, hearing the same matter, may come to a different conclusion.

While I appreciate their right to appeal, I feel strongly that the safest way to deal with this is for President Jacob Zuma to suspend the two or place them on special leave, pending the outcome of the appeal, if they choose to appeal the decision.

If they do not appeal, the process of holding an inquiry in terms of the provisions of section 12 of the NPA Act becomes moot by virtue of the high court judgment.

The danger of keeping Jiba and Mrwebi at work – after the judgment and possibly pending the outcome of their appeal – is that all the decisions they would make from now until the finalisation of the appeal process may later be challenged in court.

This, no doubt, will plunge the NPA into further crisis.

I feel vindicated by the judgment because it is public knowledge that when I was head of the NPA, I did everything to convince the president and Minister of Justice Michael Masutha that Jiba and Mrwebi were bad news for the institution, that they had to be suspended and an inquiry held into their conduct.

This after they had received scathing criticisms by the high court and the Supreme Court of Appeal.

Regrettably, my pleas to the president and minister were ignored, despite the fact that they had assured me that action would be taken against the two advocates.

It is worth noting that in the matter of the DA versus Jiba, instituted and recently finalised in the Cape High Court – whereby the DA wanted the court to suspend Jiba – the president filed an affidavit stating that the justice minister had advised him that “he [the minister] was of the view that none of the jurisprudential grounds exists which warrants the suspension of advocate Jiba”.

The president added that “the process initiated by the General Council of the Bar [referring to the case resting with the High Court in Pretoria which led to this landmark judgment] will result in a definitive outcome expressed in a court judgment ruling, as opposed to the hosting of an enquiry which will culminate in a recommendation to the president, which will then require further processes to be implemented before a definitive decision, etc”.

Thus, it remains to be seen whether the president will walk the talk and abide by the ruling of the High Court in Pretoria as the definitive outcome.

Nxasana is the former national director of public prosecutions and a practising attorney.

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Read more on:    npa  |  high court  |  nomgcobo jiba  |  richard mdluli  |  lawrence mrwebi

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