OPINION: Advocates Jiba and Mrwebi: Not fit, not proper
On Thursday, the High Court in Pretoria found that advocate Nomgcobo Jiba, one of the four deputy heads of the National Prosecuting Authority (NPA), and Lawrence Mrwebi, the head of the Specialised Commercial Crimes Unit, are in possession of characters that were not "fit and proper" to be advocates. That they had lied. That they have brought "the image of the legal profession, the Prosecuting Authority, into disrepute".
Advocate Nomgcobo Jiba, one of the four deputy heads of the NPA, has been at the centre of several cases that could literally determine whether our current president finishes his term in office. They relate to former police crime intelligence head Richard Mdluli, the Spy Tapes case and the case around former KZN Hawks head Johan Booysen. Jiba, and her colleague, the head of the Specialised Commercial Crimes Unit, advocate Lawrence Mrwebi, have been the two big players in the fight for the soul of the NPA. They have been seen as the people actually controlling the NPA for President Jacob Zuma, which has led to their characters being called into question.
On Thursday, the High Court in Pretoria found that their characters were not "fit and proper" to be advocates. That they had lied. That they have brought "the image of the legal profession, the Prosecuting Authority into disrepute".
Jiba and Mrwebi will probably appeal. But the damage has been done in what must surely rank as the most scathing judgment of the character of senior officials in probably the last 20 years.
The back story to this is long. But to over-simplify, the last five years have seen the Supreme Court of Appeal (SCA) make findings against both Jiba and Mrwebi for their conduct in several cases. The first, and probably the most important, was the case against Mdluli. He was accused of murder and other crimes. Jiba overruled the prosecutor in the case, the current DA MP Glynnis Breytenbach. In this, she was backed by Mrwebi. Eventually, the SCA said their decision was wrong, and found that it had not been honestly made.
Then, that same court made findings against Jiba again, because she had failed to hand over to the DA the infamous "spy tapes" relating to the decision to withdraw corruption charges against Zuma. The DA wanted them for its own challenge to that decision.
And then, in another ruling, in the Durban High Court, Jiba was found by a judge to have made an official decision to prosecute Booysen based on a signed document that constituted evidence.
Except for the slightly inconvenient fact that when she made this decision, that document did not in fact exist.
It should be remembered that it appears in all of these cases that the person who ultimately benefits from these decisions is President Jacob Zuma.
In the end, the former head of the NPA, Mxolisi Nxasana, asked the General Council of the Bar if it would consider going to court to have both Jiba and Mrwebi struck off the roll of advocates. This was part of his own internal battle against the two of them. Nxasana left the NPA, but the Bar's application continued with his application.
Judge Francis Legodi handed down his judgment on Thursday morning.
This is a case that is all about character, what kind of person you are. In the end, the test that is applied is whether someone is "fit and proper" to be an advocate. Legodi goes into this test in detail, saying it means these people must be "individuals of integrity whose conduct is objective, honest and sincere". As a result of this, this ruling makes incredibly personal remarks.
Time and time again, relating to both Jiba and Mrwebi, you see the word "lied", or the phrase "cannot be true". There is a sense of frustration from Legodi when he says:
"One is by now accustomed to this kind of response by Jiba in these proceedings."
In his final paragraphs, one can't escape a feeling of shame being brought upon the legal profession by both Jiba and Mrwebi. Consider this paragraph, about the decision not to prosecute Mdluli:
"Mzinyathi, Breytenbach and other prosecuting officials who were involved in the investigation of charges against and prosecuting of Mdluli, were like foot soldiers in a war-zoned area crying loud for the freedom and space to declare war and to fight against serious crimes that are crippling our country and threatening investment. Jiba, on the other hand, was like a commander-in-chief and in charge, required to lead by example. But instead, she flouted every rule in the fight against crime.
"Her failure to intervene when she was required to do, has failed the citizens of this country, and in this 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 person to remain on the roll of advocates."
What other words could be more damning?
After examining the definition of what is "fit and proper" in what he admits is a long ruling, Legodi goes through the conduct of Jiba and Mrwebi case by case. He starts with the Booysen matter, before finding that "it suffices for now to conclude on the Booysen matter, by stating that no case has been made for her removal or suspensions from the roll of advocates". In a way, this is a surprising conclusion, because Jiba did actually face perjury charges, before her new boss (and former underling), Advocate Shaun Abrahams, took over the NPA.
Legodi then goes into the Spy Tapes case. The claim here is the finding from the SCA that she took a "supine attitude" and "shrugged her shoulders" by not handing over these recordings to the DA, and leaving the matter for Zuma's lawyers. Again Legodi says she does not have a case to answer, "in the absence of mala fides and or ulterior motive on her part, I am unable to find against her on the 'supine attitude complaint'"... before saying, "I therefore find that no case has been established with regard to the spy tapes matter." But, he says ominously, "that cannot be said with regard to the Mdluli case".
It is important to remember here what Mdluli actually promised at one point. Legodi himself spells it out, explaining how, after Mdluli had been suspended from his post, he had written a letter in which he said, "In the event that I come back to work, I will assist the president to succeed next year." The "next year" he refers to is the ANC's 2012 Mangaung Conference. This was obviously a proposal by Mdluli that he had the power to ensure Zuma would retain his position as head of the ANC.
At the time, Mdluli appeared to have the power to tap communications at will. At one point people like Fikile Mbalula and Julius Malema were convinced their phones were being tapped, and that their conversations were being made available to Zuma. And this is before we remember that it does seem Mdluli was the person who informed Zuma that the "spy tapes" existed in the first place.
All of this now starts to fall into place.
Legodi starts to get personal with Jiba in his findings on her decision to stop the prosecution of Mdluli. He says at one point that "her failure to ensure there was compliance was therefore not only unwarranted, but was in my view also deliberate and or reckless". A few paragraphs later he says, "But again, she misses the point, and displays conduct which is not only not befitting of an officer of the court, but also not befitting the conduct of a person holding such high public position in the prosecuting authority."
Legodi is convinced that in the end, it was all about protecting Mdluli. "In my view," he states, "Jiba was steadfast to do everything in her power to ensure that the charges against Mdluli were permanently withdrawn. This was despite the prima facie evidence against Mdluli." He also says that this "displayed an ulterior motive".
Obviously, by this stage, Legodi's views on Jiba are pretty clear. He is no less scathing about Mrwebi.
One of the main points of contention here is a series of "consultations" (in quotation marks because there is contestation about whether they were legally classified as such) with the Director of Public Prosecutions for North Gauteng, Advocate Sibongile Mzinyathi. The General Council of the Bar first asked that he also be removed from the roll of advocates. But, as the case progressed, they started to withdraw that claim, as it became clear that in fact, he had done nothing wrong. Indeed, he is the only person in the NPA to emerge from this with any credit. Legodi specifically says that he "should in my view be commended for standing firm against Mrwebi's withdrawal of the charges against Mdluli".
At issue here is a legal argument around "consultation". Under the National Prosecuting Authority Act, Mrwebi was bound to have "consulted" with Mzinyathi, as the case happened under his geographical jurisdiction. At one point in this saga, Mrwebi appeared to say that he did. But Legodi found that he did not, quoting from previous proceedings to indicate how it was clear that Mrwebi had refused to take Mzinyathi's views on board.
Again, Legodi is furious:
"To discuss with a colleague whom you are obliged in terms of the legislative framework to consult and agree with; and parted on the understanding that a decision will not be taken before a research is conducted, but then thereafter took a decision contrary to the understanding, in my view, can only be ascribed to as a betrayal and consultation in bad faith by an officer of the court. This is my view is so serious that it should justify a removal from the roll of advocates."
In other words, Mrwebi cut Mzinyathi out of the loop, and tried to change the paper trail to hide the fact.
Legodi also finds that he agrees with Advocate Wim Trengrove in the Breytenbach disciplinary hearing that "Mrwebi's evidence was 'patently, dishonestly, given'. Mr Mrwebi seems to have forgotten about the oath which he took as a witness, but also as an officer of the court when he was admitted as an advocate in 1988. He turned himself into an unreliable and dishonest witness."
Legodi goes on:
"...there cannot be any excuse for his lies. He should be found to have ceased to be a fit and proper person to remain on a roll of advocates. He betrayed his oath of office as an advocate and in doing so, also brought the prosecuting authority into disrepute".
But Legodi is not done yet. It is clear he actually is dumbfounded that all of this has happened:
"I cannot believe that two officers of the court (advocates) who hold such high positions in the prosecuting authority will stoop so low for the protection and defence of one individual who had been implicated in serious offences."
And he also has plenty to say on the damage he believes has been wrought by Jiba and Mrwebi:
"By their conduct, they did not only bring the prosecuting authority and the legal profession into disrepute, but have also brought the good office of the President of the Republic of South Africa into disrepute by failing to prosecute Mdluli who inappropriately suggested he was capable of assisting the president of the country to win party presidential election in Mangaung during 2011 should the charges be dropped against him."
In other words, Legodi appears to be saying that Jiba and Mrwebi have actually damaged Zuma's name in all of this.
By this point, you have to stop and ask, but why would they do it? Why would Mrwebi and Jiba do what we have now been told several time was wrong in relation to Mdluli? They had several opportunities to change course, and didn't take them. It's back to "who benefits". It can only be Zuma. And of course, one shouldn't forget that Jiba has already had something in return. Her husband, Booker Nhantsi, had his criminal record expunged back in 2012, so that he could take on a job in a municipality. The motivation for Mrwebi may still be unclear.
And then of course, what will happen next? The NPA put out a limp statement on Thursday noting the judgment and explaining that, "We will reflect on issues raised in the judgment with a view to determining legal avenues to explore." Considering the strength of the findings here, the chances of a successful appeal must be zero. There is simply no chance. And that is because of the previous findings around the decision not to prosecute Mdluli.
Interestingly, the NPA itself has no real power to do anything. It is up to the President to act: he appoints deputy NPA heads, and has the power to suspend them.
So Abrahams can console Jiba, and do little else. Zuma, of course, will not want to act here. And he may well suggest that Jiba appeal the ruling, if just to buy him more time. But that has a further wrinkle. The DA has previously brought an application trying to force Zuma to suspend Jiba. That failed. But as part of his reply, Zuma did state that he was awaiting the outcome of this particular case. Now that we have the outcome, it will surely be disingenuous not to act.
But of course, you know better by now than to hold your breath. Already Jiba's attorney, Zola Majavu (current and former client: Hlaudi Motsoeneng) has indicated that Jiba feels "aggrieved" by the judgment, and will appeal. It is unlikely that she and Mrwebi would actually take responsibility for their actions and resign. One would think that if a judge finds that you are a liar, and you hold a position in the legal profession, you might feel a sense of shame. You might resign just to absolve you of that. If you think that will happen here, you are living in a fantasy land. Shame is in short supply in these territories. Major-General Mthandazo Ntlemeza is in exactly the same position. He has also been found to be a liar. He is also not fit and proper to hold his position as head of the Hawks. And look at how he is conducting himself. And to what end?
People like Ntlemeza and Jiba and Mrwebi will continue in their positions. They will continue to bring shame to them, to their professions, and to South Africa. And they will continue doing it as long as President Zuma remains in control.
_Stephen Grootes is the senior political correspondent for Eyewitness News and the host of the Midday Report on Talk Radio 702 and 567 CapeTalk. He is the author of SA Politics Unspun. Follow him on Twitter: _ @StephenGrootes