Advice from its own legal teams that the reasons for dropping charges against Richard Mdluli did not make ‘any rational sense’ went unheeded
Three of South Africa’s top prosecutors have been accused of lying under oath, misleading the courts and ignoring advice from their own legal teams in their bid to justify dropping charges against former crime intelligence boss Richard Mdluli.
The National Prosecuting Authority (NPA) – under Nomgcobo Jiba when she was still acting national director of public prosecutions – went through three different legal teams and ignored the advice of two of them.
Two of those legal teams would eventually abandon the case, warning the NPA it would “indisputably lose the case”, that there was “damning” evidence that laws were not followed and the reasons for dropping the charges against Mdluli did not make “any rational sense”.
These warnings are revealed in internal NPA memorandums, which have been attached to the General Council of the Bar of SA’s (GCB) court application to have three top NPA officials disbarred or suspended.
The officials involved are Jiba, currently a deputy director of public prosecutions, Lawrence Mrwebi, specialised commercial crimes unit head, and North Gauteng prosecutions head Sibongile Mzinyathi.
In August, NPA head Mxolisi Nxasana asked President Jacob Zuma to suspend Jiba, Mrwebi and Mzinyathi, but this request fell on deaf ears.
This week, Advocate Jeremy Muller, acting on behalf of the GCB, which is responsible for the regulation of the advocates’ profession, filed an affidavit in an application this week for the three to be struck off the roll of advocates.
Although communication between lawyers and their clients is usually privileged, Karen van Rensburg, the NPA’s CEO, has waived this privilege, which has allowed the GCB to include memorandums from the lawyers.
The memorandums relate to rights group Freedom Under Law’s court challenge of the NPA’s decision to drop corruption charges against Mdluli.
At the time, Jiba was acting head of the NPA after being appointed by Zuma in 2011, and Mrwebi was the head of the specialised commercial crimes unit.
The first advocates briefed on this matter were McCaps Motimele, SC, and Viwe Notshe, SC. But they were replaced with Terry Motau, SC, and Benny Makola in June 2013, less than a month before the case was due to begin.
In a memorandum Motau subsequently addressed to the NPA explaining the reasons for the team’s withdrawal, he said there were “contradictions between the evidence which had been given on behalf of the NPA during [former Mdluli prosecutor Glynnis] Breytenbach’s disciplinary hearing and the contents of the [NPA’s] draft answering affidavit [in the Freedom Under Law case]”.
This single affidavit Motau had drafted for the NPA had also been split into two separate affidavits against his advice, one for Jiba and one for Mrwebi.
Motau wrote that evidence given by Mzinyathi during Breytenbach’s disciplinary hearing was “damning, as it indicates that legislative requirements were not followed by Mrwebi when withdrawing the charges against Mdluli”.
This team was then replaced with another team of advocates – Leon Halgryn, SC, and Johan Uys.
In a memorandum they addressed to the NPA on August 12, they were even more scathing about the case.
They indicate that there is “simply no defence” and pointed out that the NPA had “inexcusably” only filed “a few sparse documents” as part of the record of the decision.
“While we have been instructed that we should refrain from recording our views on the merits of the charges, we cannot but record that [evidence] which [was] particularly not filed, as part of the fraud record/docket, were four affidavits by investigating officers and witnesses, a fact which leaves us exasperated,” the team wrote.
With regard to the decision to drop charges against Mdluli, they advised the NPA to find another team of advocates if they wanted to proceed with justifying the decisions to discontinue the prosecution.
“None of the reasons advanced thus far makes any rational sense, let alone establishes a defence,” they said.
Nonetheless, the NPA forged ahead with its defence and appointed a fourth legal team to argue the matter.
Both the North Gauteng High Court and Supreme Court of Appeal, in finding against the NPA, would later make critical findings against Jiba, Mrwebi and Mzinyathi.
On this basis, argued Muller in his affidavit, the following conclusions could be drawn: Jiba and Mrwebi sought to mislead the court by not placing a full record before it, Jiba did not tell the truth in her affidavit and Mrwebi and Mzinyathi also sought to mislead the court.
The three are due to file their responding papers within the next month.