Following the announcement of AfriForum's intent to privately prosecute Nomgcobo Jiba on charges of fraud and perjury, the National Prosecuting Authority said it was clear that the lobby group had a "flagrant disrespect for due process and judicial processes".
"Just because Jiba finds herself in President Zuma's inner circle doesn't mean that she is above the law. AfriForum will help ensure that justice prevails through private prosecution – including the President and his inner circle." - @kalliekriel #GerrieNel— AfriForum (@afriforum) November 16, 2017
At a media conference in Centurion on Thursday morning, AfriForum, through its private prosecution unit headed by Advocate Gerrie Nel, announced its intentions to bring Jiba to book.
Last year Jiba and her colleague, Lawrence Mrwebi, were struck off the roll of advocates of the General Council from the Bar of South Africa.
News24 reported that this was over their handling of the case against former crime intelligence head Richard Mdluli.
However, the lobby group's intention to prosecute Jiba is in relation to former KwaZulu-Natal Hawks head General Johan Booysen.
AfriForum's Kallie Kriel said Booysen was targeted unlawfully by Jiba after he started investigating the business operations of Thoshan Panday, a close business associate of President Jacob Zuma.
Judicial processes incomplete
In January this year Jiba and Mrwebi were granted leave to appeal their striking from the bar, and the following month Zuma decided not to suspend her or institute a commission of inquiry into her conduct.
NPA spokesperson Luvuyo Mfaku said it was telling that AfriForum had called a media briefing and announced the private prosecution of Jiba while the judicial process in respect of the matter had not been finalised.
"That in itself demonstrates their flagrant disrespect for due process and judicial processes," said Mfaku.
Mfaku said Freedom under Law instituted legal proceedings in the North Gauteng High Court to review and set aside the decision of the NPA's specialised commercial crime unit regional head, Advocate Marshall Mokgatlhe not to prosecute Jiba on fraud and perjury charges.
The matter was argued in court on October 30 and judgment was reserved.
Mfaku also cited the judgment by Judge Frans Legodi in the matter between the General Council of the Bar of South Africa and Jiba: "Legodi opined as follows...'Courts for the purposes of an exercise of its discretion in terms of section 2(2) referred to in paragraph (62) of this judgment, may rely on hearsay evidence, information and documentation collected by the police and presented to it by the prosecution.
Charges 'not sustainable'
"If that is so, and courts are entitled to have regard to hearsay evidence during trial, so too should the National Director of Public Prosecutions (Jiba in Booysen's case) be entitled to rely on hearsay and similar facts evidence for the purpose of authorization..." read the judgment.
"In paragraph (67) Justice Legodi stipulates that 'I cannot find any mala fides and or ulterior motive in the authorisation by Jiba as contemplated in POCA.'
"In the light of the judgment cited above, it follows therefore that fraud and perjury charges are not sustainable," Mfaku added.
He said that Nel, who is an experienced litigator who should have perused the judgment cited above and should have procured a nolle' prosequi certificate in terms of section 7 of Criminal Procedure Act 51 of 1977 prior to addressing the media, if he professes to uphold due process and the rule of law.
Mfaku added that any request for a nolle' prosequi certificate, a formal notice confirming that the matter would not be pursued by the prosecuting authority, would only be considered after the finalisation of the court processes referred to above.