Richard Mdluli. Picture: THE TIMES
Richard Mdluli. Picture: THE TIMES

President Cyril Ramaphosa’s efforts to sort out the leadership crisis and restore the credibility of the National Prosecuting Authority (NPA) have been dealt a blow.

On Tuesday the Supreme Court of Appeal paved the way for the return of two senior NPA officials, who were on special leave after they were struck off the roll of advocates for the way they had dealt with a politically charged case involving the former head of crime intelligence, Richard Mdluli.

The court overturned a high court judgment, which struck deputy national director of public prosecutions Nomgcobo Jiba and Lawrence Mrwebi, a special director of public prosecutions and head of the specialised commercial crimes, off the roll.

The court was divided on the matter, with three judges agreeing that Jiba and Mrwebi not be struck off the roll as their actions did not justify it, while two judges said in a dissenting judgment that the appeal should have been dismissed and that the high court decision was correct.

Jiba, who was widely seen as being politically protected by former president Jacob Zuma, can now go back to her office following the judgment and deputise for NPA boss Shaun Abrahams, whose own future hangs in the balance.

The NPA has for the past decade been seen to be politically captured and has been accused of bias and selective prosecution. NPA senior leadership also faced a credibility crisis after it reversed a decision to prosecute former finance minister Pravin Gordhan.

NPA 'leadership issues'

During his first state of the nation address in February, Ramaphosa said he would deal with the NPA’s "leadership issues" to ensure it was "stabilised and able to perform its mandate unhindered".

The General Council of the Bar (GCB) brought the application to have Jiba, Mrwebi and Sibongile Mzinyathi struck off the roll because of the way they had handled three political cases. The decision to drop charges against Mdluli was the definitive matter, which saw Jiba and Mrwebi struck off the roll.

Supreme Court of Appeal Acting Deputy President Jeremiah Shongwe said in the majority judgment that the way Jiba had acted in the Mdluli case could not "fairly be considered sufficient to conclude that Jiba is not a fit and proper person to remain on the roll of advocates".

"Perhaps one may infer some form of incompetence with regards to her duties, which may be a ground to remove her from being the DNDPP [deputy national director of public prosecutions], but not sufficient enough to remove her from the roll of advocates."

NPA spokesman Luvuyo Mfaku said the authority was pleased with the judgment, calling it a vindication of the rule of the law. "There is nothing precluding advocates Jiba and Mrwebi from coming to the offices. However, they will engage with the national director of public prosecutions [Abrahams] before they return."

Freedom Under Law obtained a court order in December 2017 that barred Jiba and Mrwebi from performing any functions relating to their NPA jobs and prohibited them from engaging in any discussion regarding any cases, pending the Supreme Court of Appeal judgment.

Zola Majavu, Jiba’s attorney, said when Jiba would return to work was an issue between her and the NPA.

Vuyani Ngalwana, chairman of the GCB, could not indicate if it would appeal.

In December, the high court, following an application from Freedom Under Law, directed the president to institute disciplinary inquiries against Jiba and Mrwebi into their fitness to hold office and to suspend them pending the outcome of those inquiries.

Freedom Under Law’s Nicole Fritz said the rights group still believed Jiba and Mrwebi were not fit to hold office and would persist with legal processes to ensure they did not.

Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution, said even though the judgment had been overturned, the court had still cast aspersions on the integrity of those holding high office in the NPA.