25 April 2019

South Africa: Mokgoro Inquiry - 10 Damning Findings Against Nomgcobo Jiba and Lawrence Mrwebi

Is the Mokgoro inquiry report the final nail in the coffin for National Prosecuting Authority's (NPA) advocates Nomgcobo Jiba and Lawrence Mrwebi?

President Cyril Ramaphosa has yet to announce his decision on whether to fire Jiba and Mrwebi, currently suspended from the NPA, but the leaked report from the inquiry may force his hand.

In a scathing report, retired Constitutional Court justice Yvonne Mokgoro recommended that Ramaphosa sack the two advocates.

Here are 10 crucial points from the report you need to know:

1. Jiba wasn't frank under oath

Mokgoro considered whether Jiba - in her capacity as Deputy National Director of Public Prosecutions/Acting National Director of Public Prosecutions - had complied with legislation, including the Constitution, the NPA Act and any other relevant laws in her capacity as a senior leader in the NPA.

She also considered whether Jiba was fit and proper to hold this position and be a member of the prosecutorial service.

According to Mokgoro, the evidence shows that Jiba has not been frank when engaging under oath with the Court in the Freedom Under Law matter.

"Further evidence led before the inquiry showed that she had not been frank in her affidavit before the Courts in the [General Council of the Bar High Court] matter and GCB SCA matter either, making general proposition regarding the functioning of the NPA knowing full well that that process had not been followed in the specific matters which she was called upon to account for."

2. Jiba didn't act in the spirit of the NPA Act

The report says Jiba's conduct in multiple instances indicates a "lack of conscientiousness". The Mokgoro inquiry report has also found that her actions were not in line with the requirements set out under section 9(1) of the NPA Act.

3. Jiba compromised the NPA's independence

The report says with regard to the prosecution of [former KZN Hawks boss Johan] Booysen, the evidence establishes that she allowed and, in fact, compromised the independence of the NPA.

While testifying before the inquiry Booysen maintained that Jiba used insufficient evidence to charge him.

4. Jiba failed to properly exercise her discretion

The report further says Jiba did not exercise her discretion when she failed to consider the extensive memorandum presented to her when charges against former Crime Intelligence boss Richard Mdluli were withdrawn.

5. Jiba failed to comply with court processes

The report says in her capacity as Acting National Director of Public Prosecutions, Jiba failed to comply with court processes within the stipulated time frames and drew strong criticism for displaying a lack of candour in her submissions and for failing to take the court into her confidence.

The report adds that Jiba has been labelled "supine" in several judgments for failing to act in instances where she had been expected to do so.

"We find that as a senior member of the NPA, Jiba has displayed irreverence to the courts and indifference to their processes, resulting in adverse comments being made against her."

6. Series of Jiba's decision as acting NDPP brought NPA into disrepute

In relation to whether she displayed competence and the capacity required to fulfil her duties, the report states that Jiba failed to review, as requested, the decision taken by Mrwebi to withdraw the charges against Mdluli.

The report also states that Jiba failed to competently apply the prescripts of the Prevention of Organised Crime Act, the NPA prosecution policies and the law in the Booysen prosecution.

"Jiba also failed to competently and timeously comply with court orders, time frames and directives as set by the courts."

The report further says the "series of decisions taken in her capacity as Acting National Director of Public Prosecutions, which were all set aside on review, as well as the comments and criticisms the courts levelled against her, have brought the NPA into disrepute".

7. Mrwebi acted contrary to the provisions of NPA Act

On whether Mrwebi, special director of public prosecutions, fulfilled his responsibilities and whether he complied with the Constitution, the NPA Act and other relevant laws, the Mokgoro report states that, "in taking the decision to withdraw prosecution of Mdluli without consulting [Sibongile] Mzinyathi, Mrwebi acted contrary to the provisions of the NPA Act".

The report has also found that Mrwebi did not act with integrity as required under section of the NPA Act.

"The courts have levelled criticism and concerns in the manner in which Mrwebi has discharged the duties of his office and conducted himself towards the courts. Mrwebi's conduct was openly at variance with what is expected of a person in his position."

8. Mrwebi did not properly exercise his discretion

The report has also found that Mrwebi did not properly exercise his discretion in instituting and conducting criminal proceedings on behalf of the State and carrying out the necessary functions when he decided to discontinue the prosecution of Mdluli.

"Mrwebi gave contradictory versions when seeking to explain what was meant by the phrase 'in consultation with'. Mrwebi showed a lack of understanding of the law and the legal process," says the report.

9. Mrwebi 'cared little about merits' of the Mdluli case

The report says Mrwebi's conduct was inconsistent with the provisions of the Prosecutions Policy Directives by withdrawing the prosecution of Mdluli when there was a prima facie case. He displayed "flawed reasoning" when making this decision.

"The policy directives require that extensive police investigations must be carried out before a prosecution is withdrawn on the ground that there is no reasonable prospect of a successful prosecution.

"As established by the evidence, Mrwebi cared little about the merits of the Mdluli case or whether a successful prosecution was reasonably possible; he simply decided that the matter fell within the jurisdiction of the IG [Inspector General] and that it should be withdrawn and given to the IG."

10. Mrwebi failed to act without favour

The report also found that Mrwebi did not act without favour and prejudice to the NPA. Soon after taking office on November 1 2011, he took the decision to withdraw charges against Mdluli. He did so without reference to his colleagues and the police and without consulting North Gauteng director of public prosecution Sibongile Mzinvathi.

"He [Mrwebi] took office on 1 November 2011 (proclamation indicates that the appointment was with effect from 25 November 2011), received representations on 17 November 2011, immediately called for the docket and memorandum and took a decision on 4 or 5 December 2011 without reference to his colleagues and police and without consultation with [Sibongile] Mzinyathi. It is therefore evident that he failed to act without favour and to the prejudice of the NPA," the report says.

Source: News24

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