Analysis: The case for Nomgcobo Jiba

These legal arguments come to us by way of a formal legal response to an application filed by the DA, in which it is asking a judge to compel Zuma to suspend Jiba. Their main argument is based on the criticism she has received from several judges in high profile cases. In the Supreme Court of Appeal, in separate cases, she has been found to have acted improperly in allowing charges to be withdrawn against former Police Crime Intelligence Head (and known Zuma ally) Richard Mdluli. In the Zuma Spy Tapes case, she is accused of "lying supine" in failing to hand over the recordings to the DA, despite a court order that she do so. And in Durban, the High Court there threw out a case against the KwaZulu-Natal Hawks head Johan Booysen, after she claimed to have made the decision to charge him based on a document that hadn't yet been brought into existence.

In essence, the DA's claim is that she is acting politically, and doing Zuma's will. From their point of view, and, to be fair, in much of the writing of this particular journalist up until this point, there has been a strong case against her. After all, to make a mistake and be judicially criticised in one case is one thing, for it to happen to you three times surely suggests a pattern.

That said, the legal case, here, is whether she should be suspended or not.

There are now formal responses from Jiba, her boss Abrahams, Zuma himself, and the Justice Minister Michael Masutha.

The first point to make, and it is made by both Jiba and Abrahams, is about how this is a political manoeuvre by the DA. Jiba points out the party's application is literally a bid by a political organisation with a political objective in mind. She suggests this undermines the independence of the NPA.

She is, surely, correct, in this assertion. There is no way around this for the DA, it is a party that gets very excited when the ANC says anything about the criminal justice system; from an objective point of view, surely other people are allowed to get as excited when the DA does the same thing.

Then there is the claim that she is the victim of a particular group of people. Both Abrahams and Jiba say this, and the person they blame is the former head of the NPA, Mxolisi Nxasana. They suggest that he instituted the criminal charges of fraud and perjury against her after the Booysen case purely out of malice. Abrahams goes as far to quote a claim from Nxasana in an earlier document, in which he says that Jiba "has been confident from some time that I will be removed from my position soon and that she will be appointed as National Director or Acting National Director. Thus, it appears that she is simply defying my instructions in the belief that I will not be there to hold her to account". Abrahams then says this manifests as "what may fairly be described as a paranoid sensibility".

Whoa gentlemen, handbags at ten paces please...

A fact which must bolster the argument that all of this is about a political agenda from Nxasana comes when it emerges that he actually authorised the NPA to pay up to 75% of the costs of the application being brought by the General Council of the Bar to have Jiba removed from the roll of advocates. This is very bad for Nxasana. Sure, he was probably within his rights to suggest to the Bar that it investigate having Jiba removed (after the criticism she had received from judges), but to pay their costs...

That is a giant leap too far; it smacks of an agenda. It also has the consequence of making it harder to believe the Bar approached this matter with an open mind.

Abrahams does seem to make what could be an important concession when he says, with regard to the cases involving Mdluli, the tapes and Booysen, that her "conduct may not always have been exemplary". Zuma makes the same point in his papers, when he says that it is "always a matter of concern when a person holding a high office should be criticised in this fashion". But, says Zuma, Abrahams told her she was "performing her functions well". Abrahams says that the suggestion "she had conducted herself dishonestly was, in my view, negated by the surrounding circumstances...".

So, basically, Abrahams and Zuma say she didn't do the right thing, but in the view of Abrahams it was an honest mistake, and Zuma is going to take his word for it. Context matters here. Jiba was Abrahams' boss before he was elevated to the top spot. By Zuma. We shouldn't be too surprised this group of people all agree then...

There is another argument, advanced by both Zuma and Abrahams that point to situations where two other deputy NPA heads, advocate Silas Ramaite and Willie Hofmeyer, have found themselves being investigated criminally. Ramaite was accused of drunken driving, Hofmeyer of attempted corruption. They both make the point that the DA did not bring applications against them then, so why are they then attacking Jiba like this now? No doubt a lawyer could find an argument against that, but it won't be a cheap one.

There is also a technical argument which could decide this entire matter before it even gets to the merits. It is the Constitutional concept that a check or intent to force the executive, in this case the President, to act in a certain way, can only be ordered by the Constitutional Court. Abrahams suggest that thus the High Court "lacks jurisdiction", and this whole matter must go straight to Braamfontein.

He also makes an important, and honest, point about the NPA. In his papers he says it's an "open secret" that when he came into office the institution found itself "having the lowest morale" in its history. That is surely true. And it is only the result of all of the meddling by politicians. Or one politician in particular.

So then, on the law, and on the arguments presented so far, Jiba, and her supporters, could actually be in quite a strong position. It is, by design, rather difficult to force a President, who has been elected to power, to do something he or she does not want to do. This may mean the DA, and the various other organisations who have brought similar cases, are going to find it tough going.

But that doesn't mean Jiba is necessarily wholly in the right. Thrice she has been criticised. In the Mdluli case it appears her action helped someone known to support Zuma, in the Zuma Spy Tapes her action helped Zuma, and in the Booysen case, her actions helped a Durban businessman who is linked to Edward Zuma. As Zuma's own lawyer Kemp J. Kemp once quoted the Bond villain Auric Goldfinger, "Once is happenstance. Twice is coincidence. Three times, it's enemy action". DM

More Reading:

• The case for Jiba in her own words, Daily Maverick;


• How Abrahams "promoted" Jiba, Daily Maverick;


• The Long Arm of the Law appears to be catching up with Jiba, Daily Maverick;


• Our Coverage of the SCA's ruling on Zuma Spy Tapes, Daily Maverick.

Photo: Advocate Nomgcobo Jiba (EWN)