Nomgcobo Jiba wants interdict to halt process to review her removal from office

Former deputy national director of the National Prosecuting Authority (NPA) Nomgcobo Jiba has sought an urgent interdict in the Western Cape High Court to halt the parliamentary process to consider her removal from office by President Cyril Ramaphosa. 

This is pending the outcome of a separate court challenge to the decision to remove her from the NPA.

Parliament’s two justice committees — the National Assembly’s portfolio committee on justice and correctional services and the National Council of Provinces’ select committee on security and justice — were due to separately commence deliberations on Ramaphosa’s decision to remove Jiba and another senior NPA official, Lawrence Mrwebi, on Tuesday.

Instead, they both decided to await the outcome of the application for an urgent interdict, which Jiba lodged on Monday afternoon. The matter is due to be heard on Wednesday.

Parliament’s legal advisers were due to file an affidavit on Tuesday morning in response to the application for an urgent interdict, saying it would abide by the decision of the court in this matter.

In terms of the NPA Act, parliament has to confirm or revoke the president’s decision to remove the national director of public prosecutions, deputy national director or special director. Ramaphosa would have had no choice but to send Jiba and Mrwebi back to the NPA if parliament resolved that they had to remain in office. Jiba acted as head of the NPA for a time.

Parliamentary legal adviser Siviwe Njikela briefed both justice committees separately on the legal process launched by Jiba.

He said Jiba’s attorneys argued in a letter to parliament that in terms of the sub-judice rule the parliamentary process should be halted until the outcome of the court action.

However, parliament’s legal advisers responded that the sub-judice rule did not apply as at the time that parliament launched its process, there was no court action so it was fully within its rights to undertake what was a statutory process.

The urgent interdict application was sought in response to that letter from parliament.

Apart from the urgent interdict, Jiba is challenging Ramaphosa’s decision to remove her on the basis of the findings of a commission of inquiry that found that she and Mrwebi were not  fit and proper persons to hold office. The inquiry was headed by retired Constitutional Court justice Yvonne Mokgoro.

In seeking to set aside Ramaphosa’s decision, Jiba argues that the NPA Act is unconstitutional in only requiring a simple parliamentary majority for the removal of a NPA director as this did not provide the institution with adequate protection. She argues that a two thirds majority should be required as is the case for the public protector.

Mrwebi wrote to parliament on Tuesday morning arguing that as the issues raised by Jiba were similar to those raised by him it would be fair for parliament not to proceed with his case pending the outcome of the Jiba court application.

In July, the two committees gave Jiba and Mrwebi 10 working days to present arguments as to why they should be restored to office.

Jiba and Mrwebi, both of whom were seen as allies of former president Jacob Zuma, have fought vigorously against their dismissal, which came six months after their suspension on full pay in October 2018.

The removal of Jiba and Mrwebi from office is seen as key to the restoration of the integrity and credibility of the NPA as an institution central to the fight against crime and corruption. The appointment of Shamila Batohi as head of the NPA is another crucial pillar to this endeavour.

Ramaphosa decided in April that Jiba and Mrwebi should be removed from office on the basis of the inquiry's report, which found that their actions had brought the NPA into disrepute.

The Mokgoro inquiry examined  Jiba and Mrwebi’s prosecutorial decisions, such as dropping charges against known Zuma ally and former crime intelligence boss Richard Mdluli, and instituting racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen, the charges against whom were withdrawn by Batohi on the grounds that they were invalid.

Booysen has claimed that he was charged with racketeering for blocking the business interests of Zuma's son, Edward Zuma.

ensorl@businesslive.co.za