As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Few people would have been surprised by the scathing findings made by a panel of distinguished lawyers (led by former Constitutional Court justice Yvonne Mokgoro) against Deputy National Director of Public Prosecutions (DNDPP) Nomgcobo Jiba and head of the Specialised Commercial Crime Unit (SCCU), Lawrence Mrwebi. After reading the report even fever would quibble with the decision of President Cyril Ramaphosa to fire Jiba and Mrwebi. But what is less clear is why Jiba and Mrwebi lied and schemed, and ultimately subverted the rule law, when they must have known that this might ruin their careers.
While the name of former President Jacob Zuma appears “only” 23 times in the Mokgoro report into the conduct of National Prosecuting Authority (NPA) leaders Nomgcobo Jiba and Lawrence Mrwebi (the words “dishonest” or “dishonestly” appear 12 times and the word “mislead” appears 8 times), it is impossible to read the report without wondering to what extent Zuma was complicit in the erosion of the NPA’s independence.
What exactly was the former president’s role in getting Jiba and Mrwebi to protect Zuma, his family members, and the throng of corrupt politicians and businesspeople whose support Zuma relied on to stay in power and to govern? Did crime intelligence officials place pressure on Jiba and Mrwebi to drop the prosecution of crime intelligence head Richard Mdluli on their own initiative or because they were doing Zuma’s bidding?
Did Jiba act unlawfully to pursue the prosecution of General Johan Booysen and did she then attempt to mislead the court and investigators about this on her own initiative? Or did Zuma have a hand in the attempt to neutralise Booysen because he was investigating a multi-million-rand corruption scandal involving businessman Thoshan Panday and his business partner, Edward Zuma, who happens to be Jacob Zuma’s son?
To try and answer this question the first thing to note is that former President Jacob Zuma appointed both Jiba and Mrwebi into the positions they held when President Ramaphosa decided to fire them in accordance with the recommendations of the Mokgoro panel. This was at a time when Zuma was embroiled in a fight to prevent the NPA from reinstating corruption charges against him.
As with so many other appointments made by President Zuma, these turned out to be disastrous. In fact, they were calamitous for the credibility and independence of the NPA. The following passage about advocate Jiba’s conduct in the Mokgoro panel report might give you a flavour of the problem created by their appointment:
For purposes of our evaluation, we hone in on the findings that: [Jiba] had been lackadaisical in complying with court processes; that her submissions lacked transparency; her defences for shortcomings in her conduct were technical and hidden behind formalities, and; her submissions reflected a failure to appreciate judicial powers of review and could be seen as directed at shielding illegal and irrational decisions from judicial scrutiny.
One could argue that President Zuma merely had bad luck with the appointment of Jiba and Mrwebi, and that this does not mean that he deliberately appointed people to protect him from prosecution. But there is some evidence to suggest this conclusion would be very generous towards the former president.
Just after Zuma appointed Jiba as DNDPP, the former President had pardoned Jiba’s husband Sikhumbuzo Booker Nhantsi, who was serving a five-year prison sentence for stealing R193 000 of estate money while practising as an attorney. The Minister of Justice had recommended to Zuma that the request for a pardon be refused. Yet Zuma ignored this advice and pardoned the husband of the very person who would have the final say on whether the NPA’s actions in the spy tape matter would assist or hinder Zuma’s efforts to avoid prosecution.
Despite the possible conflict of interest, Jiba had failed to recuse herself from any involvement in the spy tapes matter and the Mokgoro panel held that this failure was not acceptable, stating that:
Jiba had a duty to safeguard the image of the NPA as an institution and to mitigate negative perceptions relating to its independence. These perceptions are indeed established in the judgment itself which points to the fact that, through its conduct in the course of litigation, the office of the NDPP had damaged its esteem in the eyes of the citizenry. Her deposing to an affidavit in the matter rather than recusing herself, whether or not the decision had already been made by other officials, has a bearing on her integrity.
While the Mokgoro panel spoke of a perception of bias on the part of Jiba, her conduct in the spy tapes matter provides evidence that she was in fact biased in favour of President Zuma. The scathing criticism of Jiba’s actions by the Supreme Court of Appeal (SCA) in their spy tapes judgment is relevant here:
Ms Jiba, provided an ‘opposing’ affidavit in generalised, hearsay and almost meaningless terms… Further, it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality, or otherwise, of documents and other materials within its possession, particularly in the face of an order of this Court. Its lack of interest in being of assistance to either the High Court or this Court is baffling. It is equally lamentable that the office of the NDPP took no steps before the commencement of litigation in the present case to place the legal representatives of Mr Zuma on terms in a manner that would have ensured either a definitive response by the latter or a decision by the NPA on the release of the documents and material sought by the DA. This conduct is not worthy of the office of the NDPP. Such conduct undermines the esteem in which the office of the NDPP ought to be held by the citizenry of this country.
At the very least, the way Jiba dealt with this case creates a strong suspicion that Zuma had “bribed” Jiba by pardoning her husband with the hope (or even with the tacit or explicit agreement with Jiba) that the NPA would try to prevent or delay the handing over of the spy tapes to the litigants who wanted the dropping of charges against Zuma set aside.
Furthermore, Jiba was intimately involved in the attempt to prosecute General Johan Booysen, at a time when he happened to investigate a business partner of former President Zuma’s son Edward Zuma. It is unclear whether Zuma or his representatives had anything to do with this unlawful decision. The Mokgoro panel thus found that:
[S]omething unusual transpired in the process of authorising the charges against Booysen. More specifically, that the authorisation and prosecution of Booysen took place outside of the ordinary procedures that were in place at the NPA.
It also found that Jiba’s approach to the litigation that followed from the charging of Booysen “was misleading and in following that approach, she compromised her integrity and consequently cannot be entrusted with the responsibilities of the office that she holds”. In fact, with regards to the Booysen prosecution, “the evidence establishes that [Jiba] allowed, and in fact enabled, the independence of the NPA to be compromised”.
It may be a complete co-incidence that Jiba compromised the independence of the NPA in the very case involving the investigation of vast corruption in which the business partner of Edward Zuma was allegedly involved. (Edward Zuma later complained to Booysen when his business partner’s funds were frozen by the NPA.) But this would be a rather unlikely co-incidence. I, for one, is not convinced that Jiba’s behaviour in the Booysen matter is unrelated to Jacob Zuma.
A further problem highlighted in the report relates to the unlawful dropping of charges against crime intelligence boss, Richard Mdluli. This was done by Lawrence Mrwebi soon after he was appointed as SDPP. The court as well as the Mokgoro panel found that Mrwebi lied repeatedly about this matter, sometimes inventing new lies that contradicted the previous lies when his original lies unravelled under cross-examination. The Mokgoro panel took a dim view of this behaviour and held that:
Mrwebi’s conduct is inconsistent with the obligation imposed by the Prosecution Policy Directives which requires prosecutors to act in a balanced and honest manner. The code of conduct for members of the prosecuting authority requires that prosecutors be individuals of integrity whose conduct is objective, honest and sincere….This shows that Mrwebi’s independence has been compromised and therefore he cannot be trusted to carry out his duties as SDDP without fear, favour or prejudice.
But why would Mrwebi take the risk of ruining his career to protect the rather dubious Richard Mdluli? Well, we now know that crime intelligence representatives secretly visited Mrwebi and made representations to him about the dropping of charges against Mdluli. Mrwebi kept this secret but nevertheless relied on these uncorroborated representations when he dropped the charges against Mdluli. A suspicious person might wonder what damaging information about Mrwebi might have made its way into the hands of crime intelligence.
But there is, as to be expected, also a possible link between the dropping of charges against Mdluli and the interests of Jacob Zuma. Richard Mdluli happens to be the person who provided Jacob Zuma and his team with the Spy Tapes that was used as the excuse for the unlawful dropping of charges against Zuma. Whether Mdluli provided any incriminating information about anyone involved in the decision to drop the Zuma charges is unknown. The spy tapes were handed to the Zuma defence team before the NPA brought charges against Mdluli.
But a month before fraud and corruption charges against crime intelligence boss Richard Mdluli were dropped, he told President Jacob Zuma he would “assist the president to succeed next year” if he was reinstated in his job. “It is alleged [by the conspirators]” that I support the minister of police and the president of the country. In the event that I come back to work, I will assist the president to succeed next year,” Mdluli wrote.
Now, it might be a complete coincidence that charges were dropped by a lying and scheming Mrwebi soon after Mdluli pledged his support to the President of the country. But before concluding this was a coincidence, ask yourself whether whether it is [plausible that a shady crime intelligence boss trying to evade criminal prosecution would have tried to ingratiate himself with the President who himself is a person of questionable character.
The Mokgoro report provides a devastating account of how the independence of the NPA was fundamentally compromised during the Zuma years. But while the report raises very serious questions about the role of Jacob Zuma in all of this, there is further need to fill in the gaps in this tragic story.BACK TO TOP