THE BLOG
06/04/2018 06:10 SAST | Updated 06/04/2018 08:35 SAST

Ramaphosa Needs To Move On The NPA

A thorough clean-up of the NPA is long overdue and should be high on the list of President Cyril Ramaphosa's priorities.

Felix Dlangamandla/ Foto24/ Gallo Images/ Getty Images
National Prosecuting Authority boss Shaun Abrahams.

"There is reason to believe that there exists sufficient impropriety in the NPA to warrant the appointment of a judicial commission of inquiry with powers of compulsion in terms of section 3 of the Commissions Act and we accordingly urge that the National Director recommends to the President that a judicial commission with the powers we suggest."

This was one of the recommendations made by the Justice Zac Yacoob Committee established by former NDPP, Mxolisi Nxasana in 2014 to investigate leaks to the media and other parties and unethical and unprofessional conduct by the staff of the NPA.

Seen by many as the prime architects of discord and disharmony in the NPA, Nomgcobo Jiba and Lawrence Mwrebi opted not to participate with the Yacoob Committee. The recommendation that a judicial commission with powers of a subpoena was designed to get Jiba and Mwrebi to testify.

Jiba and Mwrebi were struck off the roll of advocates by the High Court in 2016 in an application brought by the General Council of the Bar.

But no such commission of inquiry was instituted, and instead, Nxasana was manoeuvred out of office with an unlawful golden handshake of R17,3 million in 2015. In his various public statements and court pleadings, Nxasana had made it clear that Jiba had mounted a campaign and conspired to undermine his authority from the time that he assumed office as NDPP in 2013.

She had her eye on the top prosecutor's job, having served as Acting NDPP for approximately 18 months from the time that Menzi Simelane's appointment was declared irrational and unconstitutional by the courts. [Simelane was the first NDPP appointed by Zuma] Jiba's 'smallenyana' skeletons, however, meant that even Jacob Zuma could not appoint her as NDPP – her appointment would almost certainly have been set aside by the courts.

Indeed Jiba and Mwrebi were struck off the roll of advocates by the High Court in 2016 in an application brought by the General Council of the Bar (GCB), after repeated judicial criticism of their conduct in matters before the courts.

They are appealing this decision to the Supreme Court of Appeal (SCA) and have the luxury of being on 'special leave' during this time rather than being suspended. In December last year, amid a flurry of court judgments relating to the NPA and state capture matters, was a high court ruling that the dropping of fraud and perjury charges against Jiba was erroneous.

Gallo Images
Advocate Menzi Simelane during his disciplinary inquiry on July 14, 2015 in Johannesburg, South Africa. (Photo by Gallo Images / Beeld / Felix Dlangamandla)

The court ruled that the President should institute disciplinary enquiries into the fitness of Jiba and Mwrebi to hold office in the NPA. This order was suspended pending the decision of the SCA in the GCB striking off of the matter. However the court went further and ordered that Jiba and Mwrebi be prohibited from performing any functions at the NPA or accessing the NPA premises while on 'special leave'.

The court was clearly at pains to prevent any further poisoning of the situation at the NPA by the duo.

On being appointed as NDPP in June 2015, one of Shaun Abrahams' first orders of business was to withdraw the charges of perjury and fraud that were hanging over Nomgcobo Jiba. Abrahams may have gotten the job that Jiba coveted, but she was not about to let her power and influence diminish.

Was Abrahams in the debt to Jiba for getting the job? He had leap-frogged four levels, including several more senior officials to land the prize. A stroke of luck, a recognition of his precocious genius or a sheep being herded into a pen? We now all know the answer to that.

No wonder "Shaun the Sheep" has danced to the tune dictated by Zuma, repeatedly aiding in delays that have prevented him from having his day in court. He stoutly defended Mokotedi Mpshe's irrational decision to drop the charges, until he (and Zuma) ran out of legal options before the SCA in September last year.

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Once the SCA ruled that Mpshe's decision should be set aside, instead of immediately reinstating the charges, Abrahams acquiesced in letting Zuma make further legal representations on whether the charges should be revived. He was under no legal obligation to do so – the Constitution only says that he 'may' do so. Zuma had already had one bite of that cherry when he made representations to Mpshe based on the controversial "Spy Tapes".

Abrahams then appointed a team of prosecutors led by KwaZulu Natal director of public prosecutions (DPP), Moipone Noko to assess the representations and advise Abrahams. The team included the Eastern Cape DPP, Lungi Mahlatsi, Bloemfontein Regional Head, Alinicia Coetzee and senior DPPs Raymond Mathenjwa and Billy Downer.

Downer led the prosecution of Schabir Shaik and was vehemently opposed to Mpshe's flawed decision in 2009. This now constitutes the core of the team that will lead the prosecution of Jacob Zuma on 16 counts of fraud, corruption and racketeering in the Durban High Court.

Can we have confidence in this team to execute the responsibility to prosecute the former President without fear, favour or prejudice as the Constitution demands? That Noko leads the team is a given as the matter will be heard in KZN where she is the top prosecutor.

Noko's appointment as KZN DPP by Jacob Zuma, while Jiba was Acting NDPP, was not without its own hullabaloo. It was reported at the time that she was under investigation for maladministration, favouritism and abuse of office. Zuma created an art of appointing flawed characters to the senior public office.

Noko almost immediately withdrew charges against one of the first ladies, Tobeka Madiba-Zuma in relation to intimidating her domestic worker. That was followed by withdrawing corruption charges against KZN MEC's Peggy Nkonyeni and Mike Mabayakulu in the 'Amigo's case' involving Gaston Savoi and procurement irregularities at the KZN Department of Health (Nkonyeni was MEC for Health at the time).

A thorough clean-up of the NPA is long overdue, and should be high on the list of President Ramaphosa's priorities.

She colluded with Jiba to reinstate charges against KZN Hawks head, Johan Booysen that had previously been struck down by the High Court. For good measure, she also presided over the dropping of corruption charges against 'businessman' Thoshan Panday for attempting to bribe Booysen. None of this provides any reassurance that she will act independently and with integrity in prosecuting the Zuma case.

The grubby paws of Jiba, Abrahams and Noko hold sway for now. A judgment is awaited from the Constitutional Court on the golden handshake paid to Nxasana, and whether Abrahams' appointment is valid. Should the Court confirm the High Court judgment that the golden handshake was unlawful and that Abrahams' appointment as NDPP is set aside, President Ramaphosa will be able to select a successor who will hopefully begin the mammoth task of restoring the credibility to the NPA.

In delivering the State of the Nation Address in February this year President Ramaphosa said, "We will urgently attend to the leadership issues at the National Prosecuting Authority to ensure that this critical institution is stabilised and able to perform its mandate unhindered".

Mike Hutchings / Reuters
Former South African President Jacob Zuma and President Cyril Ramaphosa at the National Conference of the ruling African National Congress (ANC) in Bloemfontein December 18, 2012. REUTERS/Mike Hutchings

What better way to start than with an effective and impartial prosecution of a former President?

But that will not be enough. We have seen attempts by the NPA following the ANC's National Conference at NASREC in December to portray itself as being serious about tackling corruption.

This is nothing more than a knee-jerk reaction to the changing political climate and an attempt by Abrahams to save his job. There have been no actual prosecutions let alone convictions following the Public Protector's State of Capture Report in November 2016.

Nor have there been any prosecutions following the Farlam Report on the Marikana Massacre in 2015. Such lethargy in pursuing high profile cases can no longer be tolerated. A thorough clean-up of the NPA is long overdue and should be high on the list of President Ramaphosa's priorities.