The deputy national director of public prosecutions, Advocate Nomgcobo Jiba, and special director of public prosecutions Advocate Lawrence Mrwebi – both on special leave – have told President Jacob Zuma that suspending them would be unlawful.
Last month, Zuma asked the two to make representations on why they should not be suspended, following a damning Pretoria High Court ruling which ordered that they be disbarred.
In her submission, Jiba informs the president of her impending application to appeal against Judge Francis Legodi’s ruling.
Judge Legodi concurred with the General Council of the Bar of SA that Jiba and Mrwebi were “not fit and proper” for their jobs.
This followed their decision to drop charges against former crime intelligence head Richard Mdluli, who faced a number of indictments, including defrauding a secret slush fund.
In her response to the president, Jiba states:
“I respectfully submit that there are both reasonable prospects of success on the appeal, and compelling reasons the appeal should be heard.”
Jiba contests that if she is suspended – pending an inquiry into her fitness to hold office – it would have “constitutional ramifications for the independence of the National Prosecuting Authority (NPA) as an institution and all its prosecutors, from the National Director of Public Prosecutions (NDPP) down to the prosecutor in the lowest court of this country.”
She further states that if prosecutors faced the prospect of being struck off the roll for the “exercise of their prosecutorial discretion, even assuming those decisions to be wrong – which is not even the case in this instance” – it would go against the Constitution.
Jiba writes that there are mechanisms to deal with “wrong decisions by prosecutors, including setting aside these decisions either on review or appeal, which has been the practice in this country”.
Jiba who was acting head of public prosecutions at the time of the Mdluli case, also states that “the decision to prosecute or not” was not the primary function of the NPA head.
In his submission, Mrwebi states it is “regrettable that former NPA boss Mxolisi Nxasana withdrew every report and briefing minutes on the Mdluli matter as he believed that the Mdluli matter was his best ammunition against me”.
Mrwebi goes on to argue that Nxasana used “the Mdluli case to institute trumped-up charges” against him.
Mrwebi writes that the advocates did not have enough evidence to prosecute Mdluli, saying they suggested granting convicted crime intelligence officer Hein Barnard immunity in exchange for his testimony against Mdluli.
But according to Mrebi, Barnard refused to assist their investigations, leaving them with lack of evidence to proceed with the case.
Mrwebi states that he stands by his decision: “These findings against Advocate Jiba and me are baseless, unfounded and indeed very unfortunate. The decision I made in the Mdluli matter is still the correct one as it was in line with prosecution policy and policy directives of the NPA.”
Mrwebi also writes that he has launched an appeal process to review the ruling, and Zuma would be in violation of the Constitution if he suspended him while that process was ongoing.
Nxasana responded to Mrwebi’s claim that he withheld crucial information from him as a “lie”, adding that the NPA had the sole mandate to prosecute criminal matters in South Africa.
“[In addition], the NDPP issues prosecution policy directives, which the prosecutors must adhere to when exercising their discretion on whether to prosecute.
"So, it is imperative that they be honest when exercising this discretion ... They [Jiba and Mrwebi] clearly abused their power and ... allowed their independence to be influenced by outside forces. It follows that they cannot now seek refuge from the ‘independence of the NPA’ when, in fact, they are the ones who abdicated that independence.”