National Prosecuting Authority has become a political football

Posted 23 August 2015 Written by Mail & Guardian
Category Corruption

Nomgcobo Jiba of the National Prosecuting Authority (NPA) has had a charmed life under the apparent protection of President Jacob Zuma, who many believe she is protecting - in return - from prosecution. The political interference in the NPA is legendary and this week just got a whole lot worse, says the Mail & Guardian.

The new director of the NPA, Shaun Abrahams, has revealed his hand in backing Nomgcobo Jiba. (Madelene Cronje, M&G)The National Prosecuting Authority has lost yet another opportunity to put itself on a solid footing and to regain the credibility lost over the past six or seven years, in which it has seemed to be involved in all sorts of partisan political battles and has been largely paralysed by internal ructions. By all accounts, there was virtually a war between the factions.

Nomgcobo Jiba (pictured left, alongside new director of the NPA, Shaun Abrahams), who was acting national director of public prosecutions for nearly two years, as the president, who makes the appointment, struggled to find a permanent director to his liking, served as one node of a polarised working environment.

President Jacob Zuma’s eventual choice, Mxolisi Nxasana, emerged as an unlikely node of opposition to the Jiba camp when he refused to play second fiddle to her. But, despite Jiba being implicated in some highly questionable prosecutorial decisions, to the extent that Nxasana had her alleged misconduct reported to the General Council of the Bar, the police and the president, Zuma was unmoved. He refused to suspend her or institute an inquiry into the NPA shenanigans Nxasana had laid at her door. Nxasana, white-anted from within and without, was left with little choice but to go.

There are two ways of ending a war: by making peace or by annihilating the opposition. Zuma’s new choice, a youngish career prosecutor by the name of Shaun Abrahams, appears to have chosen the latter.

This past week he presided over the withdrawal of perjury charges against Jiba and reportedly gave her power and portfolios that in effect make her a super deputy, while sidelining her enemies. This is precisely what people concerned about the decay and paralysis in the NPA didn’t want to see happen. Jiba has denied that she “works for” Zuma, but some of her most visible actions as an NPA leader have suggested she may indeed be there to act as proxy for political interests – to ward off the possibility of any revived prosecution of the president on the charges that were dropped in 2009, to keep the heat off close Zuma allies such as former crime intelligence boss Richard Mdluli, and to get moving on prosecutions of others seen as enemies of either the president or allies of his, especially in KwaZulu-Natal.

Abrahams’s embrace of Jiba, in the midst of serious allegations against her that are or were in the process of being tested, smacks of cynicism, despite his pious promise that he was nobody’s man.

The NPA has been headless since Thabo Mbeki suspended Vusi Pikoli, and it has suited Zuma to keep it so, contributing to its decline as a crime-fighting unit. Putting Jiba back in position simply retards any chance of the NPA regaining its full capacity or sense of independent public purpose. Maybe that’s the point.

She's the boss

Advocate Nomgcobo Jiba this week cemented her position as one of the most powerful people in the National Prosecuting Authority (NPA) – even, some critics argue, emerging as its de facto boss.

Shaun Abrahams, the 39-year-old prosecutor appointed by Jacob Zuma to succeed Mxolisi Nxasana as the national director of public prosecutions (NDPP), on Tuesday announced the withdrawal of perjury charges against her and a “reshuffle” of the NPA executive.

Although he refused to be drawn on the details, the NPA has not denied reports that Jiba has been appointed to lead a new division combining the National Prosecution Service and the National Specialised Prosecutions Service, which includes powerful agencies such as the Commercial Crime Unit.

This came despite a pending bid by the General Council of the Bar (GCB) to have her struck off the roll of advocates, a move that, if successful, would disqualify her from her current position.

Abrahams’s brazen action to bolster her power base also flies in the face of a court application by the nongovernmental organisations Corruption Watch and Freedom Under Law that seek to set aside the removal of Nxasana and declare Abrahams’s appointment invalid.

His announcements have prompted renewed allegations of the political capture of crucial state institutions that are supposed to act independently. Corruption Watch’s director, David Lewis, told amaBhungane the decision tantamount to promoting her “cannot possibly be reasonably sustained”.

“It’s time to be really worried about the NPA,” Lewis said. “If you are a South African who is concerned about corruption and crime, you need to be really, really worried.”

He said the question that emerged was: “What is it that ties the political decision-makers to this small group of people in the NPA that have undermined the independence of the organisation for years now – and in the most extraordinary turn­around have just been confirmed in power now? Is it the politically powerful who protect them, or is it they who have some hold over the political principals and can demand protection?”

Protected by powerful political interests

Jiba this week declared that “I don’t work for President Zuma”, and denied she acted partially.

But she has been accused of misconduct in many incidents and cases that appear to be tied to Zuma’s political interests.

They go as far back as crime intelligence boss Richard Mdluli’s 2008 investigation of Jiba’s bête noire, advocate Gerrie Nel, for which Jiba was suspended and charged departmentally for her role in attempting to procure an arrest warrant for Nel.

In 2010, the case was dropped in a deal allegedly brokered by then justice minister Jeff Radebe, regarded as a long-time ally of Jiba.

Zuma appointed her as a deputy NDPP in December of that year.

But the allegations of misconduct flow mainly from her time as acting NDPP, a role she assumed from December 2011, when the Supreme Court of Appeal set aside Zuma’s appointment of Menzi Simelane, until September 2013, when Nxasana took office. They are central to the GCB application to have her struck off the roll of advocates.

The case is based on judicial criticism of her conduct in three matters: the 2012 application by Freedom Under Law to challenge the decisions to withdraw separate murder and corruption charges against Mdluli, a self-declared Zuma loyalist; the 2013 Democratic Alliance case to access the so-called NPA spy tapes to buttress their attempt to have corruption charges against Zuma reinstated; and the 2012 challenge by the KwaZulu-Natal Hawks commander, General Johan Booysen, to Jiba’s authorisation of racketeering charges against him.

Booysen was charged in connection with the so-called Cato Manor hit squad, but it is widely believed that the real reason for targeting him was his involvement in investigations of crime intelligence and of Thoshan Panday, a Durban businessperson associated with members of the Zuma family.

Added to that was Booysen’s closeness to Bheki Cele, the former police national commissioner and a powerful player in the anti-Zuma faction in KwaZulu-Natal.

It was the hit-squad case that gave rise to the perjury charges against Jiba that Abrahams announced had been withdrawn, allegedly because there was no prospect of success.

The only reason so far advanced for this view is that the Prevention of Organised Crime Act, under which Booysen was charged, indemnifies actions taken “in good faith”.

But this hardly explains the withdrawal of charges, given that the basis for the case was that Jiba had intentionally misled the high court in Durban about the evidence she had before her that supported the racketeering charge laid against Booysen.

In that case, Booysen contended that none of the evidence before her at the time implicated him in terms of the Act. Judge Trevor Gorven concurred.

Booysen submitted that Jiba had lied in her sworn statement. She was invited to explain how she could have taken into account information that objectively did not exist at the time of taking the decision.

Gorven noted: “In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence. In such circumstances, the court is entitled to draw an inference adverse to the NDPP.”

At a press conference on Wednes­day to mark what she called the “NPA coming to its senses” by withdrawing the charges, Jiba attempted to suggest that the criticism of her by various judges was routine legal disagreement. 

But the GCB argues that the case against Jiba boils down to repeated instances of dishonesty, including in the Booysen case, which render her unfit to be an advocate.

A lawyer who lies to court "unfit to be lawyer"

Johann Kriegler, the retired Constitutional Court judge behind Freedom Under Law, called in to 702 radio on Wednesday to denounce the stated justification for the withdrawal of perjury charges against Jiba.

“A lawyer who lies to the court is unfit to be a lawyer,” he charged.

Kriegler told amaBhungane that Freedom Under Law and Corruption Watch had given Abrahams until Monday to deliver proper reasons.

He said, if they were not satisfied, the organisations would consider launching an urgent application to challenge the quashing of charges.

“I am not sure the public fully understand that a dishonest prosecutor is very much worse than a crooked judge.” He said this was because prosecutorial decisions took place behind closed doors, whereas judges’ rulings were in the open and subject to review.

On the Mdluli matter, the GCB argues that Jiba sought to mislead the court by not placing before it a proper record of all the documents and facts relevant for the court to arrive at a proper decision.

In that case, Judge John Murphy noted: “The conduct of the respondents is unbecoming of persons of such high rank in the public service and, especially worrying in the case of the NDPP, a senior officer of this court with weighty responsibilities in the proper administration of justice.”

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