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.
