It would appear that President Cyril Ramaphosa's "new dawn" is serving us a diet of commissions of inquiry and disciplinary hearings.
Apart from the state capture inquiry (Raymond Zondo commission), tax administration inquiry (Robert Nugent commission), and the Public Investment Corporation inquiry (Lex Mpati commission), we have a pending disciplinary hearing for embattled, suspended SARS boss Tom Moyane.
And now the president has announced an inquiry into the fitness of deputy national director of public prosecutions, Nomgcobo Jiba and special director, Lawrence Mwrebi. These National Prosecuting Authority (NPA) inquiries are initiated in terms of the NPA Act. Judicial commissions of inquiry are appointed by the president in terms of powers granted under Section 84 of the Constitution, and are governed by the Commissions Act.
The provisions of the NPA Act were recently modified by the Constitutional Court in Corruption Watch & Others v President & Others. In that case the Council for the Advancement of the South African Constitution (Casac) challenged the constitutionality of Section 12(6)(a) of the NPA Act which permitted the president to suspend officials for an indefinite period pending an enquiry.
The court has now ruled that suspension can be for a maximum period of six months so that suspension cannot be utilised as an arbitrary punitive measure – officials are also entitled to full pay during the period of suspension.
The challenge by Casac was premised on seeking to strengthen the independence of the NPA. There is an irony that Jiba and Mwrebi should benefit from these judicial amendments – it is arguable that neither should enjoy the financial perks of office given their conduct in bringing the NPA into disrepute.
The Constitutional Court gave Parliament 18 months to effect changes to the impugned sections of the NPA Act, and ruled that in the interim the judicial amendments would be in force.
The Presidency noted in the media statement announcing the inquiry: "The enquiries will not take the form of a judicial enquiry or a commission of enquiry; instead it is an internal process that is expected to advise the President on the fitness of the two senior officials to hold high office in the National Prosecuting Authority."
This follows the provision of the NPA Act which gives the president the discretion to determine the mode of the inquiry. There has only been one completed inquiry in terms of the NPA Act, the Ginwala inquiry into the fitness of Vusi Pikoli in 2007/08. Former president Jacob Zuma appointed an inquiry under Advocate Nazir Cassim to examine Mxolisi Nxasana's fitness but aborted it at the eleventh hour after the latter accepted a golden handshake, which was struck down by the Constitutional Court as constitutionally invalid.
Being the first inquiry of its kind, Ginwala was faced with deciding how to conduct matters. Ginwala noted in her report:
"I determined rules and procedures in the context of the Act and the terms of reference, after consulting the parties. The intention was that the process should be investigative and inquisitorial rather than adversarial and accusatorial. Nevertheless some aspects of a judicial process did feature in this Enquiry. We also endeavoured to make the work of the Enquiry as open and transparent as possible. The rules of the Enquiry were framed in a way that severely limited the classification of submissions and documents, and enabled the hearings to be largely conducted in public."
It is hoped that these inquiries follow this open, consultative approach. Ginwala finalised rules of the inquiry after consulting the parties. These provided inter alia for the parties to make written submissions including evidence on affidavit, for Ginwala to determine the disputes of fact that existed and to hear oral evidence only on those disputes.
Cross examination of witnesses was permitted and both parties made closing arguments to Ginwala, who was assisted Advocate Ishmael Semenya SC and Mr Dinesh Gihwala, an attorney. Most of the evidence was heard in public, except for some testimony that traversed national security matters. This is an approach that should be commended and followed by Justice Yvonne Mokgoro, who has been appointed to lead the inquiries into Jiba and Mwrebi – she will be assisted by Advocate Kgomotso Moroka SC and Ms Thenjiwe Vilakazi, an attorney.
Ginwala was provided with the terms of reference (ToRs) for her inquiry by the Presidency some ten days after the inquiry was announced. In the Jiba/Mwrebi case the Presidency has tasked the evidence leader, Advocate Nazreen Bawa SC, to develop the ToRs for the two inquiries. It is not clear on what basis Bawa will be able to do so – surely it is President Ramaphosa's decision to institute the inquiries, and he is best placed to provide Justice Mokgoro with the mandate of the inquiries.
The president informed Jiba and Mwrebi on August 1 of his intent to institute these inquiries – he must have known at least by then of the reasons why such inquiries were necessary.
The NPA Act is clear that an official may only be removed for one of four reasons, namely misconduct, ill health, incapacity to carry out his or her duties efficiently, or that he or she is no longer a fit and proper person to carry out the duties of that office. The ToRs must articulate issues relating to one or more of these grounds that the inquiries must investigate.
President Ramaphosa's decision to appoint an all-women team to conduct these inquiries must be commended, and highlights the black female talent that resides in the legal profession. In addition, Moroka was also part of the legal team that represented government in the Ginwala inquiry.
With respect to the timeframes for these inquiries the interim relief imposed by the Constitutional Court reads: "The period from the time the President suspends the National Director or a Deputy National Director to the time she or he decides whether or not to remove the National Director or Deputy National Director shall not exceed six months."
This means that Ramaphosa must act within six months. Once the inquiries have reported to the president, he must inform Parliament within 14 days of his intention to remove them if Parliament is in session or within 14 days of its next session. Parliament must then, within 30 days, endorse or reject the president's decision.
The president is then obliged to act as Parliament determines. However the president need not follow the recommendations of the inquiries. In the Pikoli matter, Ginwala found him to be fit and proper, albeit with some reservations, but then President Kgalema Motlanthe nevertheless decided to remove him, and Parliament duly obliged.
Ramaphosa must therefore inform Parliament of his decision before the end of April 2019. As Parliament is likely to be in recess then due to the national elections anticipated to be in May, this may buy him more time. It is however not clear what this means in terms of the six months suspension of Jiba and Mwrebi.
Can their suspension be extended or will they be allowed to return to work pending the report to Parliament? The Constitutional Court did not deal with this scenario. However it is clear that the court felt that matters should be handled speedily in the interests of protecting the independence of the NPA.
The ToRs must therefore be finalised as a matter of urgency to enable the inquisitorial investigation to proceed. Justice Mokgoro should eschew the overly formalistic procedures employed by the Zondo commission, and strive to determine, without distractions, whether the serious allegations against Jiba and Mwrebi render them unfit to hold office.
- Lawson Naidoo is the executive secretary of Casac. He was the deputy secretary of the Ginwala inquiry.
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