The deadline for President Cyril Ramaphosa to decide whether or not to fire suspended prosecutions bosses Nomgcobo Jiba and Lawrence Mrwebi passed at midnight on Thursday night, with no indication from the Presidency as to what Ramaphosa plans to do.
Ramaphosa had until 00:00, April 26 to act on recommendations by the Mokgoro Inquiry panel, which was that he should "remove from office" Jiba and Mrwebi.
Jiba, former acting National Director of Public Prosecutions and Mrwebi, former head of the Specialist Commercial Crimes Unit, were suspended in October last year, giving Ramaphosa six months to decide their fate as per a Constitutional Court ruling.
The Mokgoro report, leaked on Wednesday night, deals with critical questions about Jiba and Mrwebi's fitness for office that has been unanswered for the better part of a decade.
From blatant disregard for the rule of law to dishonesty and borderline perjury, the report is a lesson on how not to be a senior prosecutor.
The panel, consisting of retired Constitutional Court judge Yvonne Mokgoro, Advocate Kgomotso Moroka SC and Thenjiwe Vilakazi, had a wide mandate. Readers of the report who have followed the crisis at the NPA over the years will be left with few questions over what happened.
The scope of issues covered by the panel included a number of lengthy, detailed court cases involving the pair, including the Spy Tapes cases and various attempts to have them struck from the roll of advocates.
The voluminous record ran into 5 214 files contained in a Dropbox folder which was used by all the parties - some of these files contained entire records, according to the panel.
Ramaphosa suspended both Mrwebi and Jiba in October 2018 pending the outcome of an inquiry into their fitness to hold office. This followed "serious criticisms" of Jiba and Mrwebi in courts and "in other fora", according to Mokgoro.
The report was submitted to Ramaphosa on March 31 2019 and leaked to the media a day before Ramaphosa's April deadline by which he must make a decision on Jiba and Mrwebi's fate.
In the report, Mokgoro did not mince her words.
Some key findings by Mokgoro against Jiba and Mrwebi are:
- Jiba failed to comply with the proper legal prescripts in her handling of the Johan Booysen prosecution;
- Jiba failed to competently and timeously comply with court orders, time frames and directives as set by the courts, and;
- Jiba failed to display the required competence and capacity to fulfil her duties.
Mrwebi meanwhile was not only found to have acted in a manner that brought the NPA into disrepute and in contravention of policies, but was even dishonest with the inquiry in his attempt to answer questions.
"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," the report finds.
Furthermore, Mrwebi also displayed a "lack of understanding of the law and legal processes surrounding the [Richard] Mdluli prosecution".
While the issues canvassed by the report span a vast number of decisions taken by Jiba and Mrwebi, the crux of the matter comes down to three key issues: Richard Mdluli, Johan Booysen, and the Spy Tapes saga.
The matter of Mdluli
Mrwebi's role in the Mdluli matter is at the heart of questions over his fitness and competency.
Mokgoro found that Mrwebi's decision to withdraw charges against Mdluli, the former Crime Intelligence head, was irrational and unlawful.
"The manner in which he withdrew the Mdluli charges and his representations to the Courts in relation thereto drew severe judicial criticism. So severe were the findings that he has been found guilty of misconduct," the report reads.
Jiba meanwhile failed to exercise her discretion as acting NDPP properly in failing to consider a 26-page memo that set out the reasons why Mrwebi's withdrawal of charges against Mdluli was in dispute.
The Booysen case
Jiba's conduct in approving racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen "allowed the independence of the NPA to be compromised".
Mokgoro found that the violation of procedures in initiating the prosecution and appointing a team to see the case through, was irregular.
Jiba's conduct "had the effect of seriously damaging public confidence in the NPA".
Jiba's involvement in the infamous Spy Tapes case was born in controversy.
From the get-go, Jiba was not only tainted by perceptions of bias, jeopardising the case, but she failed to assist the courts in handling the complex matter, the panel found.
The Mokgoro report notes that when the Spy Tapes matter was being heard in court, Jiba's husband had applied for a presidential pardon - an application which former President Jacob Zuma would eventually grant - against legal advice.
Jiba went on to maintain that the NPA was a co-respondent in the case by virtue of the fact that it had a copy of the Spy Tapes, to which the DA wanted access.
This was part of a broader application by the DA to have the decision not to prosecute Zuma for alleged crimes committed in the arms deal scandal, taken on judicial review.
Part of the reason Zuma was not prosecuted was because of the emergence of the "Spy Tapes", which supposedly proved a conspiracy by the Scorpions to use political considerations in deciding when to charge the former president.
As acting head of the NPA, the courts and the panel were scathing of her conduct. This included an affidavit submitted by Jiba which the Supreme Court of Appeal (SCA) said was "generalised, hearsay and almost meaningless... "
Furthermore, by deciding that the NPA should not take a view on whether or not to hand over the Spy Tapes in its position, the SCA found that the NPA, and by extension, Jiba, showed a "lack of interest in being of assistance" to the courts.
Said Mokgoro: "This criticism of the NDPP's office leads to the inescapable conclusion that it is just as much a criticism of Jiba herself who was at the helm of the office at the time as the Acting NDPP.
"A leader's choice to lead or to be led still amounts to a choice made by that leader and is one for which the leader is accountable. The criticism is exacerbated by the fact that she herself deposed to the affidavit but seemed oblivious to the implications of the order and what was expected of her office."
Mrwebi and Jiba, through her lawyers, declined to comment on Thursday. The Presidency did not respond to several requests for comment on Thursday afternoon. The NPA could not immediately be reached for comment on Thursday afternoon.
Former NPA prosecutor who was assigned to the Mdluli case, and now a DA MP, Glynnis Breytenbach, welcomed the panel's recommendation to remove Jiba and Mrwebi saying, "It's about time."
"Justice Mokgoro has done a magnificent job of summarising just how low Jiba and Mrwebi stooped and how they enabled the magnitude of state capture by allowing people to operate in a space free of consequences in the knowledge that they too would be free of consequences," she said.
Craig Watt-Pringle, chairperson of the General Council of the Bar said: "I can say that given the importance of the public's right absolutely to rely on the integrity of the NPA, I welcome the release of the report and look forward to the President's decision following his receipt of such submissions as the two implicated NPA officials may have chosen to make."
- Additional reporting by Azarrah Karrim and Jeanette Chabalala