ANALYSIS: Understand Mokgoro's report into Jiba, Mrwebi

2019-04-25 09:12
Suspended deputy NPA boss Nomgcobo Jiba testifying before the Mokgoro inquiry. (Jeanette Chabalala, News24)

Suspended deputy NPA boss Nomgcobo Jiba testifying before the Mokgoro inquiry. (Jeanette Chabalala, News24)

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A report by former judge of the constitutional court Yvonne Mokgoro recommends that two senior officials at the National Prosecuting Authority, Nomgcobo Jiba and Lawrence Mrwebi, be removed from their positions. Read the extensive analyses by our specialist reporters here.


12:56 Jiba not a secret agent - Mokgoro

Suspended NPA boss Advocate Nomgcobo Jiba is not, and was not, a secret agent, the Mokgoro inquiry has found.

Former Constitutional Court justice Yvonne Mokgoro was tasked to head up the commission that probed Jiba and her colleague Lawrence Mrwebi’s fitness to hold office.

Her report was leaked to various media houses on Thursday.

The report reveals that after a “declassification application” it was confirmed that Jiba was, and is not, a secret agent.

Jiba had allegedly flown to Durban and back on 9 September 2010 on an South African Airways flight, paid for from Crime Intelligence’s Secret Service Account.

The date of the flight is also significant, as Mokgoro points out – it was a day after former President Jacob Zuma had pardoned Jiba’s husband and three months before she was appointed as acting NDPP.

Former SAPS Crime Intelligence head Richard Mdluli was also on the same flight.

Hawks investigator Roelofse had investigated the claim after a tip-off from a confidential source.

According to Mokgoro’s summary of his evidence before the inquiry, Roelofse found:

-       a ‘Mr N Jiba’ was on the flight in economy class, while Mdluli had flown business class

-       Documentation held by the travel agent identified the passenger as ‘Mr’ with a first name of ‘Nomqobo’ or ‘Nomgobo’.

-       Home Affairs records showed that there were only two Nomgcobo Jiba’s in South Africa, both female, one born in 1974 and Jiba herself.

-       He also obtained Jiba’s SAA voyager number, which had been issued after September 2010. SAA did not keep ID numbers for passengers.

 Documents in the docket relating to the flight records and details of the boarding pass were in the docket – which is missing.

 Jiba pointed out to the inquiry that nothing presented by Roelofse proved she was the person on the flight, and denied it had happened.

 Mokgoro recommended the issue must be investigated further, as a conclusion could not be drawn on the available evidence. - Kyle Cowan


12:13 Mrwebi mum on Mokgoro report  - for now

Advocate Lawrence Mrwebi, reacting to the leaking and now widespread publication of the Mokogoro Inquiry report, told News24 on Thursday he could not yet comment. 

"I am not aware of the publication of the report. I prefer to respect the process however it goes. I can only comment after the process has been finalised," he said in a text message.  - Kyle Cowan


11:36 Without the rule of law, SA Constitution "dead in the water" - Mokgoro

"In the face of South Africa’s painful history and its continuing struggle with inequality, it is the rule of law that holds every individual to the same standard and, in so doing, recognises the inherent dignity within every individual.  Whether one wields power or is of the most vulnerable, the rule of law guarantees equal treatment.  Without it, the vision of a constitutional democracy is dead in the water. Appreciating that the NPA plays a critical role in upholding the rule of law, it is crucial that it is seen to be free from all external pressures which might threaten prosecutorial independence," the Mokgoro report reads. 

"NPA officials are required to be completely devoted to the rule of law without fail. Our  country depends on it. As the sole entity constitutionally mandated to prosecute on behalf of the State, in the face of the scourge  of crime, the confidence that the public enjoys in the NPA is what prevents individuals from taking the law into their own hands.  This confidence underpins the social contract. It lies in the belief that the State can offer protection where laws are not respected."  

SARAH EVANS: Mokgoro's reference here to the "social contract" in our society is another important reminder, that if the NPA is in a bad state, the fabric of our society is at risk. The rule of law is profoundly connected to whether or not our democratic project succeeds or fails.

vsd

Former justice of the Constitutional Court Yvonne Mokgoro. (Tebogo Letsie/Gallo Images)


11:27 General Council of the Bar of South Africa welcomes Mokgoro report

"I can say that given the importance of the public's right absolutely to rely on the integrity of the NPA, I welcome the release of the report and look forward to the President's decision following his receipt of such submissions as the two implicated NPA officials may have chosen to make," said Craig Watt-Pringle, chairperson of the GCB. - Jeanette Chabalala


11:04 'Colleagues, I presume you are here to test my powers' – Mrwebi

COMMENT BY KYLE COWAN

Amid a tense disagreement with other prosecutors over the prosecution of former Crime Intelligence boss Richard Mdluli, Advocate Lawrence Mrwebi drew a line in the sand.  

He had made a decision after studying the docket to withdraw charges against Mdluli, despite being in disagreement with Advocates Glynnis Breytenbach, Jan Ferreira and their boss at the time, Sibongile Mzinyathi. 

The case is simple – Mdluli was accused of unlawful utilization of funds from the Secret Service Account for his own benefit, and the benefit of his wife, Theresa Lyons. 

As the story goes, one of Mdluli’s staff Heine Barnard had traded in Mdluli’s car in return for two new vehicles – supposedly for CI - for the couple. 

A discount of R90 000 meant to be credited to the Secret Service Account, was then used for Mdluli’s benefit. 

Mrwebi consistently argued that nothing in the docket actually proved Mdluli did anything wrong. 

Three senior prosecutors disagreed. 

The debacle reached a fork in the road on 9 December 2011, when Mrwebi told Breytenbach and Mzinyathi as an opening remark at a meeting between the trio:

“Colleagues, I presume you are here to test my powers.” 

The resulting impasse forced Breytenbach to provisionally withdraw the charges against Mdluli, to avoid “the NPA facing embarrassment” if the prosecutor had to tell the court Mrwebi, the DPP, had disagreed with Mzinyathi. 

On 30 March 2012, Mrwebi wrote to then head of the Hawks, Anwa Dramat.

“The NPA took a principled and considered decision on this matter without fear, favour or prejudice, as it is required to do in terms of the law. That decision stands and this matter is closed,” Mrwebi wrote. 

This brief outline of the events in the early days of Mrwebi’s tenure as DPP, particularly the Mdluli matter, and paints a picture of his willingness to put up a fight with colleagues over his decisions – the same decision to withdraw charges against Mdluli, which has now dominated his career and for the large part, and led him down a road of reputational ruin. 

10:51


10:49


10:43 Mokgoro: Jiba "compromised her integrity"

"Further evidence led before the Inquiry showed that she had not been frank in her affidavit before the Courts in the GCB HC and GCB SCA matters either, making general propositions regarding the functioning of the NPA knowing full well that that process had not been followed in the specific matters which she was called upon to account for. Furthermore, failing to explain the exact process that had been followed in the FUL and Booysen prosecutions. Her approach to the litigation was misleading and in following that approach, she compromised her integrity and consequently cannot be entrusted with the responsibilities of the office that she holds. In addition, and as will be canvassed in the findings below,  her conduct in multiple instances indicates a lack of conscientiousness."

SARAH EVANS: While Jiba and Mrwebi were struck off the roll of advocates by the high court in 2016, the Supreme Court of Appeal overturned that decision. An appeal by the General Council of the Bar was heard in the Constitutional Court in March, and judgement has not yet been delivered. Mokgoro’s finding that Jiba was dishonest during that court process, too, is damning for her reputation, even if the ConCourt keeps her on the roll of advocates.


10:10


9:54 Holomisa welcomes Mokgoro's rcommendations

Leader of the United Democratic Movement Bantu Holomisa says he welcomes this decision by Justice Mokgoro, saying, "it has been a controversial matter and they were given enough time to put forward their case even before this inquiry started."

"If I were in their shoes I would have asked long ago to be transferred to other departments, this will be a relief for the too."

On the impact this decision will have on the NPA and the criminal justice system, Holomisa says, "This will have no impact on the NPA other than proving the conditions at the NPA and raise the confidence of the NPA to the public." - Azarrah Karrim.


9:51 Mrwebi 'cannot be trusted'

“When Mrwebi was asked whether he did not find it worrying that implicated individuals from Crime Intelligence made secret representations to him and asked that investigations be stopped, he replied in the negative and added that he had not told the investigating officer to halt the investigations.

"That Mrwebi does not find it concerning that suspects were sending representations to him and requesting him to order that investigations be stopped presents a serious problem. The problem is compounded by the fact he kept all this to himself and did not communicate it to Mzinyathi, Breytenbach or Roelofse who were also involved in the case.”

Later: ”…this shows that Mrwebi’s independence has been compromised and therefore he cannot be trusted to carry out his duties as SDDP without fear, favour or prejudice.”

SARAH EVANS: Mwrebi’s astounding blasé attitude to attempts by Crime Intelligence to interfere in the Mdluli prosecution was as shocking to Mokgoro as it would be to any layperson.


9:29 Mokgoro: Jiba should have been aware of perceptions of bias in spy tapes

SARAH EVANS: Mokgoro found that Jiba possibly should not have been involved in the Spy Tapes at all because of the perception of bias, as her husband was granted a presidential pardon from Zuma when the spy tapes issue arose.

Mokgoro: “In light of this Jiba was asked whether she did not deem it  prudent to refrain from participating in any discussions, making comments or taking part in anything that had to do with the Zuma/Spy Tapes matter to avoid inferences and perceptions of bias. Her response was that she did not think that she should have recused herself from the Zuma / Spy Tapes matter because the decision to withdraw the prosecution had already been taken by Adv Mshe.”

And later: “Jiba had a duty to safeguard the image of the NPA as an institution and to mitigate negative perceptions relating to its independence. These perceptions are indeed established in the judgment itself which points to the fact that, through its conduct in the course of litigation, the office of the NDPP had damaged its esteem in the eyes of the citizenry. Her deposing to an affidavit in the matter rather than recusing herself, whether or not the decision had already been made by other officials, has a bearing on her integrity.”


Former KwaZulu-Natal Hawks boss, Johan Booysen. 

Former head of the KZN Hawks General Major Johan B


9:27 On Booysen and the approval of racketeering charges

"This was not the process followed in the Booysen matter and no explanation has been provided as to why the accepted process was not followed. Jiba’s evidence was that this role was served by Mosing, who was Head of the SPD, the reference being that there was nothing sinister about the process followed."

KYLE COWAN: The report is, so far, replete with small incidents like these, showing how Jiba unilaterally changed processes on certain cases - particularly Booysen - and in this case, failed to explain why.


9:26 On Booysen, specifically procedures surrounding racketeering cases

“Adv Elijah Mamabolo (“Mamabolo”) is a Senior State Advocate in the Special Projects Division (“SPD”), dealing with organised crime. In this capacity, Mamabolo was responsible for processing applications for the NDPP for the authorisation of racketeering prosecutions. “During her tenure as Acting NDPP Jiba appointed Adv Andrew Mosing (“Mosing”), a DDPP, as head of the SPD which was still based at the office of the NDPP. Mamabolo was excluded from working on both the Booysen matter and the Savoi matter although he was not aware of a reason for this. Mosing exclusively dealt with these cases.”

KYLE COWAN: This is a crucial example of how Jiba placed another prosecutor perceived to be close to her on the Booysen matter, flying in the face of established channels for cases. Sources have described Mosing to me as Jiba’s “right hand man”. KC


9:24 COMMENT BY KYLE COWAN

Jiba tried unsuccessfully to prohibit Booysen's evidence from being presented at the Mokgoro inquiry. She tried to present gruesome pictures of people allegedly killed by the Cato Manor Unit, as some sort of motivation for why she was gunning for Booysen. The ploy didn't work, but it showed a desperation from Jiba not to have her conduct in the matter explained by Booysen, her target.


9:22 On Jiba ignoring former NDPP Mxolisi Nxasana

“In her oral evidence before the Inquiry, and when asked about the first letter, Jiba indicated that she had gone in to speak to Nxasana and had informed him that he had already received reports from individuals who were better informed in those respective cases. She also bemoaned the prevailing environment of hostility at the NPA, suggesting that there was a plot to oust her and that her silence was prompted by legal advice she had received.

"Jiba’s acknowledging the shortcomings of the Office of the NDPP, including her own, is laudable. However, it does not absolve her in the course of the fitness and propriety assessment. It demonstrates that there were serious problems permeating throughout the institutional culture of the NPA but also shows that she was just as much a part of the problem.” 

SARAH EVANS: Mokgoro indicates here that Jiba was adding to the problems at the NPA, and that she could not separate herself from the hostility at the institution.


9:21 Casac: 'The president must act speedily'

Executive secretary of the Council for the Advancement of the South African Constitution (Casac), Lawson Naidoo, hopes President Cyril Ramaphosa will "act speedly" to implement the recommendations made by Justice Yvonne Mokgoro to remove Nomgcobo Jiba and Lawrence Mrwebi from their respective positions in the NPA. 

Speaking to News24, Naidoo said: "We hope that the President will act speedily to assist in the process of renewel at the NPA." He added: "This is just the tip of the iceberg. This is a small part of the problem being fixed in that this is a small symptom of the rot that has been at the NPA but it is not the end of it." - Azarrah Karrim.


9:01 Breytenbach: 'Its about time'

Democratic Alliance Shadow Minister of Justice and Constitutional Development, Glynnis Breytenbach, has welcomed today's recommendation by Mokgoro to remove Jiba and Mrwebi saying, "It's about time."

Speaking to News24, Breytenbach said: "Justice Mokgoro has done a magnificent job of summarising just how low Jiba and Mrwebi stooped and how they enabled the magnitude of state capture by allowing people to operate in a space free of consequences in the knoweldge that they too would be free of consequences." - Azarrah Karrim.


Former NPA prosecutor and current DA MP, Glynnis Breytenbach


8:57 Mokgoro on Mrwebi

"What is concerning about these representations is that neither Mzinyathi nor Breytenbach had been told about visits from senior Crime Intelligence officials not to mentio nrepresentations and requests for investigations to be stopped. When Mrwebi was asked whether he did not find it worrying that implicated individuals from Crime Intelligence made secret representations to him and asked that investigations be stopped, he replied in the negative and added that he had not told the investigating officer to halt the investigations.

"That Mrwebi does not find it concerning that suspects were sending representations to him and requesting him to order that investigations be stopped presents a serious problem.The problem is compounded by the fact he kept all this to himself and did not communicate it to Mzinyathi, Breytenbach or Roelofse who were also involved in the case.

"Mrwebi’sresponse to the memorandum presented by Breytenbach and Ferreira was dated 26April 2012. In it he cites non-compliance with security legislation. It is these very same concerns that he raised in that response that form the substance of the representations which he failed to disclose.

"This shows that Mrwebi’s independence has been compromised and therefore he cannotbe trusted to carry out his duties as SDDP without fear, favour or prejudice."


MANDY WIENER: The allegation that Mrwebi had received 'secret' representations was ventilated extensively at Breytenbach's internal disciplinary inquiry. Mokgoro's findings confirm the allegations that Mrwebi was desperate to ensure that the charges would be withdrawn against Richard Mdluli. Both Mrwebi and Jiba were at pains to protect Mdluli and Mokgoro essentially finds this to be true. What we still don't know for sure is why exactly they were protecting Mdluli.


8:51 MANDY WIENER


8:46 MANDY WIENER


8:45 MANDY WIENER


8:44 Lawrence Mrwebi at the Mokgoro Commission of Inquiry

mokgoro inquiry


8:44 More on the Johan Booysen matter

“This section focuses in on of the Booysen matter and deals with the issue of racketeering authorisations. It is relevant to Jiba and not Mrwebi. The purpose of this evidence is not to evaluate or determine the guilt or innocence of Booysen in relation to the criminal charges he is currently facing, so no conclusions are drawn on that aspect.”

KYLE COWAN: Despite Booysen’s public ‘victories’ in terms of the Sunday Times newspaper withdrawing stories, the allegations of extra-judicial killings are yet to be fully ventilated in a court of law. Various factors play a role in why that is, but Booysen’s tussle with the NPA has been procedural up to now. Mokgoro has reached that same conclusion in a roundabout way here. KC.


8:43 From the introduction

“The Enquiry and this report are but intermediate steps in the process triggered by the President’s suspension of the two officials under section 12(6) of the NPAAct. Once this report is submitted, the President is required to make a decision regarding the future of both Advs Jiba and Mrwebi in their respective positions within the NPA..."

KYLE COWAN: This is key to remember about the Mokgoro Inquiry report. It is not a final step by any means, President Cyril Ramaphosa will still make the final call, and only has six months to do so.  KC.


8:40 Mokgoro on the Johan Booysen matter (paragraphs 154, 155)

“[Sello] Maema, a DDPP from the North-West, explained the events in March 2012, around the same time Jiba made the call to [Simphiwe] Mlotshwa, which led to him being brought into the Cato Manor prosecution. He provided an unsigned and a subsequent signed affidavit that had been used in Jiba’s criminal investigation to the Enquiry. There was a small discrepancy between the two. In terms of the unsigned affidavit, he explained that he was directly approached by Jiba. She explained that Mlotshwa had appealed to her that he be provided with prosecutors because he was investigating the Cato Manor Unit but was concerned that his prosecutors may be compromised because of the relationship that they had with members of that unit. The difference with the signed affidavit was that in the signed affidavit Maema explained that Jiba had approached Smit rather than Maema directly. Smit is the DPP in the North-West.”

KYLE COWAN: This is quite startling. The change in the narrative between unsigned and signed version of Maema’s affidavit definitely raises some red flags – it seems he realised he was implicating Jiba in some way, and needed to ‘correct’ the story in a later version.


8:38 On the spy tapes: Jiba “failed in her duty to assist the court in establishing the truth”

Mokgoro: “By the Court’s own account, Jiba had neither sought to fully explain the facts, nor had she taken the Court into her confidence."

“The prosecuting authority is no exception to these constitutional imperatives. Jiba, in her capacity as the Acting NDPP at the time, was required to perform her duties and functions assiduously and forthright – anything short of that standard would reflect an incapacity and / or unwillingness to carry out the duties of office as efficiently as required by section 22(4) of the NPA Act.”

SARAH EVANS: This is a searing indictment of Jiba's conduct from Mokgoro. In finding that she had been unhelpful to the court in the Spy Tapes matter, Mokgoro is essentially saying that Jiba failed in her fundamental role as an officer of the court.


8:36

News24's justice reporter Jeanette Chabalala, investigative reporters Kyle Cowan and Sarah Evans as well as specialist reporter Mandy Wiener are scouring the report by Judge Yvonne Mokgoro into the fitness to hold office of advocates Nomgcobo Jiba and Lawrence Mrwebi. They'll post there live analysis here throughout the day.


8:32

ANALYSIS: Mandy Wiener says the removal of two decidedly questionable characters at the NPA gives it a chance at renewal.

Like an ugly stain, the controversy around Deputy National Director of Public Prosecutions Nomgcobo Jiba and Special Director Lawrence Mrwebi has refused to disappear from the National Prosecuting Authority. Now, with retired Judge Yvonne Mokgoro’s findings into their fitness to hold office, that stain is closer to being removed.

Read it here.


8:30 

It appears to be the end of the road for advocates Nomgcobo Jiba and Lawrence Mrwebi, given the finding by retired Constitutional Court Justice Yvonne Mokgoro that the pair is neither fit nor proper to hold their respective offices within the National Prosecuting Authority (NPA), EWN reported on Thursday. 


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