Court dismisses Jiba's bid to be reinstated at NPA

Axed deputy NPA boss Nomgcobo Jiba. (Jeanette Chabalala, News24, file)
Axed deputy NPA boss Nomgcobo Jiba. (Jeanette Chabalala, News24, file)

Sacked deputy national director of public prosecutions Nomgcobo Jiba's application to be reappointed has been dismissed in the Western Cape High Court with costs.

Jiba asked the court to order President Cyril Ramaphosa and National Director of Public Prosecutions (NDPP) Shamila Batohi to reinstate her "with all associated employment benefits with immediate effect".

She also asked the court to interdict or prohibit the president and NDPP from filling the position until the review had been finalised.

This after Ramaphosa fired Jiba and senior prosecutor Lawrence Mrwebi in April after retired Constitutional Court Justice Yvonne Mokgoro recommended he remove them from the National Prosecuting Authority following an inquiry.

The inquiry found that neither of them was "fit and proper to hold their respective offices", according to a statement from the Presidency.

The decision had to be referred to Parliament to determine whether Jiba and Mrwebi should be reinstated, not whether they should be fired. Parliament has begun work on this process, but stalled it pending Jiba's court application in two parts.

In September, Judge Robert Henney heard arguments in the first part. Jiba's case, as presented by advocate Muzi Sikhakhane, hinges on two points. The first is that Ramaphosa instituted the Mokgoro inquiry in contravention of a court order.

The order in question was handed down by Judge Selewe Mothle in the Gauteng High Court in Pretoria on December 21, 2017, which read: "The president is directed to institute disciplinary inquiries against Jiba and Mrwebi into their fitness to hold office in the NPA and to suspend them pending the outcome of those inquiries. It is further ordered that the implementation of this specific order be suspended pending the outcome of their ultimate appeal of the GCB [General Council of the Bar of South Africa] judgment."

Sikhakhane argued that Ramaphosa should not have established the inquiry before the appeal process in the GCB case had been finalised. This only happened in June this year, while Ramaphosa established the inquiry in November 2018.

"However powerful a president is in a democracy, their actions can't be that flagrant," said Sikhakhane who also represented former president Jacob Zuma at the Zondo commission.

The second point was that, according to Sikhakhane, Jiba should only have been fired after Parliament's process had been finalised.

Advocate Heidi Barnes, representing Ramaphosa, said Jiba's application was "premature and unnecessary".

She added the parliamentary process was a "complete and effective remedy" for Jiba instead of the court application.

Barnes said for the president to interfere with the parliamentary process would be an "inappropriate interference" in the separation of powers, adding Section 12(6) of the NPA Act was as "clear as day" and that Jiba did not like what it said.

Justice Minister Ronald Lamola, Batohi and National Assembly Speaker Thandi Modise are also respondents in the case. Their respective counsel made similar submissions to that of Barnes.

Judge Henney found Jiba had failed to make a compelling case.

In his written judgment handed down on Friday, he stated that she "has no right to such pre-emptive protection where the NPA Act specifically prescribes she may be removed by the president and may only be restored to her position by Parliament".

"If this relief is to be granted, it would effectively be interdicting Parliament from conducting its oversight function in respect to the president's removal by staying the parliamentary process pending the review."

Judge Henney said the court would "intrude upon the oversight function of Parliament".

"It would, therefore, be an unwarranted and unjustifiable invasion of the separation of powers in circumstances where the applicant has not made a compelling case."  

The second part to Jiba's application will be heard at a later stage.

In this part, she wants the court to order that Ramaphosa had violated the Constitution and, therefore, acted unlawfully when he instituted an inquiry in terms of section 12 of the act against her.

The DA expressed it's "delight" at the news.

"This is good news for South Africa, the National Prosecuting Authority and advocate Batohi," DA MP Glynnis Breytenbach said in statement on Friday evening. 

"Ms Jiba has been instrumental in hollowing out the NPA and setting the course for where we find ourselves today - rampant corruption on a grand scale with no consequences.

"The mess that has been left for advocate Batohi to clean up was largely caused by Jiba, Lawrence Mwrebi and Shaun Abrahams. Had she been reinstated, it would have been nothing short of disastrous for the resurrection of the NPA.

"The toxic influence that Ms Jiba wielded cannot be overstated and any hope of righting the ship would have been destroyed by her return. The criminal justice system is well rid of Ms Jiba and her total disregard for her constitutional duty and the rule of law," Breytenbach said.

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