Nomgcobo Jiba. Picture: SOWETAN
Nomgcobo Jiba. Picture: SOWETAN

Over the past six weeks, the inquiry into Nomgcobo Jiba and Lawrence Mrwebi’s fitness to hold office has, at times, devolved into a tale of victimhood. The suspended deputy national prosecutions boss and the suspended special director of public prosecutions have sought to distance themselves from the political tentacles that inveigled their way into law enforcement in SA — particularly those linked to former president Jacob Zuma.

Retired Constitutional Court justice Yvonne Mokgoro will now have to make sense of the contested narrative of disputed facts and contradictory testimony.

The inquiry has focused on the prosecutorial decisions taken by Jiba and Mrwebi — and their actions in subsequent litigation — in sensitive political cases. Specifically, the spotlight has been on the decision to drop charges of fraud against former crime intelligence boss Richard Mdluli (considered a Zuma ally); to institute racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen; and decisions related to the so-called spy tapes matter, in which the DA litigated to obtain access to the recordings that were at the heart of the decision to drop corruption charges against Zuma.

The way their counsel tell it, Jiba and Mrwebi have done no wrong. Rather, if mistakes were made, they were the result of legal advice taken in good faith or the result of differences of opinion.

It’s not the first time Jiba and Mrwebi’s actions have come under legal scrutiny. The Pretoria high court ruled that both should be struck from the roll of advocates for their handling of the Mdluli matter. That decision, overturned by the Supreme Court of Appeal, will be the focus of a Constitutional Court challenge on March 14. The action has been brought by the General Council of the Bar, which holds that Jiba and Mrwebi are not fit to be advocates.

Jiba has hitched her fortunes to the three supreme court judges who ruled in her favour (two supported the high court ruling). She argues that the Mdluli case and the Mokgoro inquiry are closely linked: the inquiry’s terms of reference reflect matters the Constitutional Court will consider, and the "fit and proper" standard for holding legal office is much the same as for membership of the advocates’ bar.

The perception of the political sleight of hand that has played out at the NPA has damaged the institution in the public mind

Freedom Under Law, the NGO instrumental in the litigation to review the Mdluli case, believes otherwise. It holds that higher standards should apply to legal office: after all, the deputies of national directors of public prosecutions (NDPPs) and special directors are appointed by the president to lead an institution that derives its power from the constitution.

To do its work, that institution has to prosecute without fear or favour. And it is on this count that the two advocates are alleged to have failed.

Over the course of almost a decade, the narrative developed that Mrwebi, with the support of Jiba (who was acting NDPP at the time) protected Mdluli as a favour to Zuma

But Mrwebi, in his written submission, said that suggestion was wide of the mark. As such, he asked that this narrative be removed from the purview of the inquiry and that he be judged instead on his actions.

But the facts surrounding those actions are themselves the subject of dispute.

Mrwebi holds that he was a principled prosecutor who fell victim to a vendetta.

This, he said, was the result of his investigation into his colleagues’ alleged abuse of a slush fund that, among other things, was used to pay informants of the then directorate of special operations (the Scorpions). This marked the start of his woes at the National Prosecuting Authority (NPA).

He disputes that his decision to drop charges against Mdluli was influenced by political considerations or the result of pressure from within the highly politicised crime intelligence unit. He told the inquiry he never meant to close the case against Mdluli, but rather to withdraw it provisionally (a decision he believes he made clear).

But the rationale underlying Mrwebi’s decision seems to have changed with time.

In a handwritten memo, he initially stated that the reason for withdrawing the charges was that the police did not have the mandate to investigate the case; that, he said, lay with the inspector-general of intelligence. Later, Mrwebi said the involvement of the inspector-general of intelligence was limited to declassifying documents; he did not intend that the police investigation be halted, but suggested that the evidence as it stood was insufficient for successful prosecution. The decision to withdraw the charges was provisional, he said, pending further investigation.

Mrwebi told Mokgoro that senior state prosecutor Glynnis Breytenbach agreed with this decision — as did the director of public prosecutions in North Gauteng, Sibongile Mzinyathi, who he was supposed to consult on the matter before he took a decision. What this "consultation" involved is another point of dispute.

Mrwebi’s letter to Mdluli’s lawyers, in which he withdrew the charges, was dated December 4 2011. But he met Mzinyathi only on December 5.

Mrwebi chalked the discrepancy up to an error. He said he would not have worked on a Sunday, and would therefore only have taken the decision after meeting Mzinyathi.

But Breytenbach and Mzinyathi said they both believed there was a prima facie case against Mdluli — as had the investigating officer on the matter, Kobus Roelofse, and Anwa Dramat, then head of the Hawks.

When they next met Mrwebi, on December 9, Breytenbach said she and Mzinyathi went in guns blazing to convince him to ensure the charges against Mdluli stuck — only to discover he had dropped them already. According to Breytenbach, he cavalierly said: "Colleagues, I presume you have come here to test my powers."

The inquiry heard that all of those involved — including Breytenbach, Mzinyathi, Roelofse and Dramat — had interpreted Mrwebi’s communications in the same way: the case was closed.

In Mrwebi’s telling, this was not his intention.

Whether or not the charges against Mdluli were only supposed to be "provisionally" withdrawn, the truth remains that the former crime intelligence boss has still not faced one of the fraud and corruption charges that were first levelled against him in 2011.

It’s also curious that Mrwebi withdrew charges against Colonel Hein Barnard, who was then the crime intelligence head of procurement. Like those against Mdluli, the charges against Barnard originate from the alleged unlawful use of funds from the crime intelligence unit’s secret service account, which was alleged to have benefited Mdluli and his wife. It was at the time alleged that some vehicles bought by the unit were registered in Mdluli’s wife’s name.

Barnard, who had overseen the transaction, would surely be first in the firing line. But when he was pushed by evidence leader Nazreen Bawa, Mrwebi claimed there was not only no evidence linking Mdluli to the transactions, but that the case against Barnard was problematic too.

Throughout, Mrwebi remained insistent that his decision almost a decade ago was the correct one.

While the inquiry’s focus on Mrwebi has fallen almost squarely on his actions in the Mdluli case, the matter of Jiba’s conduct has been more wide-ranging. In particular, she has come under fire for authorising racketeering charges against Booysen, and has faced charges of fraud and perjury as a result.

Jiba told the inquiry she had been convinced to charge Booysen with racketeering after seeing some of the crime scene pictures of the victims who were allegedly killed by the Cato Manor police unit, just outside Durban. In the face of claims that Booysen had been charged to neutralise his investigation of sensitive political cases, Jiba remained emphatic that she was simply doing her job.

She told the inquiry she had faced a number of "unprecedented" attacks after becoming deputy NDPP — more so than any other prosecutor in SA — and that some of her colleagues were just not ready to report to an African woman.

It is in the past decade of Jiba’s career that the Zuma link pops up. In September 2010, Zuma gave a presidential pardon to Jiba’s husband, Booker Nhantsi.

What it means

The independence of the National Prosecuting Authority is at the heart of the Jiba and Mrwebi inquiry

The former lawyer and member of the Scorpions had been convicted of stealing money from a client’s trust fund. With Zuma’s pardon, his criminal record was expunged.

After that, Jiba’s career at the NPA took a sharp turn upwards. She was appointed deputy NDPP in January 2011, and then as acting head of the NDPP after Menzi Simelane’s appointment was declared irregular.

When asked about whether she should have recused herself from decisions involving Zuma, Jiba told Bawa: "I don’t know where or why I would have recused myself." The decision to withdraw corruption charges against Zuma had already been taken, she said, "so my role there was not going to save the president".

Despite this, Jiba came to be seen as Zuma’s right-hand person in the NPA — and one of the most divisive figures in the prosecuting authority. According to deputy NDPP Willie Hofmeyr, a trend emerged under Jiba to prosecute those who were seen as obstacles to corruption — a trend that was institutionalised under Shaun Abrahams when he was prosecutions boss. She vehemently denied the accusation.

With much of the inquiry seemingly revolving around he-said, she-said accusations, it will be up to Mokgoro and her co-panellists to decide on the veracity of each witness before advising the president on a course of action.

But the shambles that is the NPA — and the perception of the political sleight of hand that has played out there— has damaged the institution in the public mind. So if it is found that Jiba and Mrwebi are fit to hold high legal office, the question will turn to how one convinces the country to trust the NPA again.