General Council of the Bar heads to ConCourt to appeal SCA’s Jiba, Mrwebi decision

What one would have given to have been able to eavesdrop on the General Council of the Bar AGM in Johannesburg at the weekend where “extensive discussions” resulted in an 18 to 12 vote (with two abstentions) in favour of approaching the Constitutional Court for leave to appeal last Tuesday’s SCA majority judgment overturning a North Gauteng High Court ruling that Advocates Nomgcobo Jiba and Lawrence Mrwebi be struck from the roll of advocates.

At this point the GCB has not made known on what basis it will be approaching the Constitutional Court. Last week the SCA, in a majority judgment, found that a North Gauteng High Court ruling disbarring Jiba and Mrwebi had been incorrect.

In his majority ruling, Judge Jerry Shongwe found that the GCB had “failed to establish the alleged offending conduct on a preponderance of probabilities” with regard to Jiba. In Mrwebi’s case, Judge Shongwe found that the head of the Specialised Commercial Crimes Unit head had “been treated harshly” by the High Court.

In his September 2016 ruling, North Gauteng High Court judge Frans Legodi had found that Jiba had “flouted every rule in the fight against crime. Her failure to intervene when she was required to do so has failed the citizens of this country and in the process, brought the image of the legal profession and prosecuting authority into disrepute. Both Mrwebi and Jiba should be found to have ceased to be fit and proper persons to remain on a roll of advocates.”

Judge Legodi is not the first to sanction Jiba or Mrwebi’s behaviour.

Jiba has been searingly criticised by no fewer than 12 judges, on four benches, in three different matters, since her appointment as Deputy Director of the NPA in December 2010 and then later as Acting Director in December 2011.

During this time she made three controversial decisions: the first was the withdrawal of the charges against former Crime Intelligence head and Zuma protector, Richard Mdluli, the second was to authorise racketeering charges against KZN Hawks head, Johan Booysen, and the third was the withholding of documents in the Democratic Alliance’s Zuma “spy tapes” application.

Judge John Murphy, ruling in the North Gauteng High Court 2013 on Mrwebi’s withdrawal of fraud and corruption charges against the powerful former head of Crime Intelligence, Richard Mdluli, said the decision had been “illegal, irrational, based on irrelevant considerations and material errors of law and ultimately so unreasonable that no reasonable prosecutor could have taken it”.

In February 2014, Durban High Court Judge Trevor Gorven found that Jiba’s decision to prosecute Booysen had been unconstitutional and invalid.

It was then NPA head Mxolisi Nxasana (before he resigned from the position with a R17-million payout) who, as a result of the 2014 ruling, charged Jiba and Mrwebi with fraud and perjury. The charges were later withdrawn by Shaun Abrahams who was appointed by Jacob Zuma after Nxasana’s sudden exit.

It was also Nxasana who referred Jiba and Mrwebi’s conduct to the General Council of the Bar.

In 2016 Willie Hofmeyr, then one of two deputy directors of public prosecution, provided a damning affidavit (in the DA “spy tapes” case) accusing Abrahams of lying under oath and “misleading” the court in a bid to protect Jiba. For his effort Abrahams transferred Hofmeyr to the NPA’s equivalent of Siberia, the legal affairs division.

Hofmeyr in his affidavit said that Abrahams had lied when he said he had not made the decision to withdraw charges against Jiba and that Advocate Marshall Mokgathle had been responsible. Hofmeyr included, in his affidavit, an email from Mokgathle stating that he was awaiting a decision from the office of the NDPP, Shaun Abrahams.

Hofmeyr then set out how Abrahams had disregarded legal opinions of two NPA prosecutors, including the experienced and respected Jan Ferreira, to charge Jiba. Over and above this, Hofmeyr also detailed how a senior employee in the Security and Risk Department of the NPA, Terence Joubert, had investigated Nxasana at Jiba’s request with “a view to bring about Mr Nxasana’s removal from office”.

Last week’s SCA majority judgment reinstating Jiba and Mrwebi as advocates was penned by Judge Jeremiah Shongwe with Judges Willie Seriti and Judge Connie Mocumie concurring. An opposing minority judgment was made by Judges Christiaan van der Merwe and Lorimer Eric Leach who felt the High Court ruling that they be disbarred should stand.

Judge Seriti, who was appointed by then President Zuma to head a commission into the multibillion-rand arms deal, coincidentally served in 2007 as the “interceptions judge” and had sanctioned the bugging by the then National Intelligence Agency of telephone conversations between then NPA head Bulelani Ngcuka and Scorpions head Leonard McCarthy.

These taped conversations later became known as the “spy tapes” which were used by then NPA head, Mokotedi Mpshe, to withdraw charges of corruption against Jacob Zuma, paving his way to the presidency in 2009.

In this case the actions of all concerned might appear to be a riddle, wrapped in a mystery inside an enigma, but all fingers point in one specific direction – former president Jacob Zuma.

In 2014 Jiba was ordered to comply with a previous court order and hand over the “spy tapes” and documents to retired KwaZulu-Natal high court judge Noel Hurt. In that instance the SCA also ripped into Jiba saying that the NDPP had been “less than candid and forthcoming” and that “in the present case, the then [acting] NDPP, Ms [Nomgcobo] Jiba, provided an ‘opposing’ affidavit in generalised hearsay and almost meaningless terms. Affidavits from people who had first-hand knowledge of the relevant facts were conspicuously absent” and added that Jiba’s “lack of interest in being of assistance to either the high court or this court is baffling”.

But it was always going to come down to this; the last men and women standing while their political principal, former president Jacob Zuma (as well as those who propped him up and defended him for over a decade), faces the final curtain in court.

Zuma’s loss of power and influence not only in the ANC but over key institutions like the NPA, SAPS and the Hawks has rendered him vulnerable. Those who have supported Zuma now risk being exiled to a political outer tundra. They are bound to resist this at all costs.

Jacob Zuma’s long walk to the dock has seen many professional casualties in the criminal justice cluster along the way including former Hawks head, Anwa Dramat, Gauteng Hawks Head, Shadrack Sibiya, KZN Hawks head Johan Booysen, former NPA prosecutor Glynis Breytenbach as well as now retreaded Minister of Police Bheki Cele (who is no friend of Richard Mdluli).

On Monday IPID Head Robert McBride, another obstacle to those who have compromised SAPS, the Hawks, CI and the NPA, found himself the focus of a letter Police Minister Cele sent to Parliament’s Police Portfolio Committee with regard to charges of “unethical conduct”.

McBride has made no secret of the fact that he is committed to flushing out corrupt elements in the SAPS and the Hawks. The referral of the letter to the Portfolio Committee on Police comes as the IPID Amendment Bill is being discussed. The bill, in line with a Constitutional Court ruling, aims to give IPID more independence from the Minister of Police.

On Tuesday IPID issued a statement saying that it assumed the allegations against McBride “are the same ones made by one of our investigators, Cedrick Nkabinde, who was offered a senior post by the SAPS in return for falsely implicating the Head of Investigations, Mr Matthews Sesoko, Task Team Leader, Innocent Khuba and IPID Executive Director, Robert McBride in wrongdoing”.

McBride said he had met with Cele on two occasions and had “brought up the allegations made by Nkabinde against myself, Khuba and Sesoko. I also indicated to the minister that all the investigators in the task team have refuted Nkabinde’s allegations as false. I was never asked to respond to any of the allegations or to give my side of the story.”

He said he welcomed the opportunity to formally respond to any allegations in line with the Constitutional Court judgment on IPID’s independence.

“I have on numerous occasions brought to the attention of the PCP and the Minister various acts of misconduct and criminality by senior police officers. It is trite that no enquiry into them has been held. Nonetheless, I will co-operate fully with any enquiry. I have stated before that these allegations are nothing more than an attempt to shield senior police officers from investigation and to scupper such investigations. The IPID has documents and recordings to refute any such allegations.”

In May 2018 IPID issued confirmed that two of its investigators had been offered senior positions by SAPS members, in return for implicating McBride and other IPID investigators in wrongdoing. This information was also presented to both the PCP and the Standing Committee on Public Accounts (Scopa) earlier in 2018.

“We will not be intimidated into stopping our investigations against the ten (10) SAPS generals, which is the real motive behind the actions of our suspects. We will release more information in due course. It is a matter of public record that the IPID’s investigations have uncovered corruption running into hundreds of millions in the SAPS and every day we uncover more. We expect that there will be pushback against us,” said McBride.

In June 2018, the IPID obtained a court order in the North Gauteng High Court prohibiting members of the SAPS from conducting counter-investigations against IPID investigators who are investigating them.

The members of the SAPS against whom the court order was obtained are the same ones implicated in opening false cases against IPID investigators and the Executive Director. These are the same people offering inducements to the two investigators in return for them making false statements to implicate McBride and others in wrongdoing.

Since the investigations were initiated, the IPID has uncovered overwhelming evidence of corruption against more senior police officers.

“It is not surprising that there will be attempts to torpedo our investigations. What is at stake is the IPID’s operational and structural independence.”

Jacob Zuma’s term in office was book-ended by criminal charges. He took his oath of office after charges of racketeering and corruption were dropped by then acting NPA head Mokotedi Mpshe in 2009. He left office in 2018 after the Supreme Court of Appeal in 2017 ordered that No 1 is now Accused No 1.

Key institutions aimed at protecting and preserving South Africa’s constitutional democracy remain under threat as those who embedded themselves in the system over the years to benefit narrow political interests instead of citizens cling on for dear life.

The overloaded judiciary has served as the last line of defence of our fragile democracy during Jacob Zuma’s rapacious and destructive years as president. We rely on it to continue to do so as we mop up an industrial-scale mess where an estimated R100-billion has been spirited away. DM