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Mokgoro Inquiry: These are the key findings against Jiba and Mrwebi

The Mokgoro Inquiry has found that senior NPA officials Nomgcobo Jiba and Lawrence Mrwebi are not fit and proper to hold their respective offices.

Advocate Lawrence Mrwebi (left) speaks to his legal counsel during the Mokgoro Inquiry into his fitness to hold office on 21 January 2019. Picture: EWN

JOHANNESBURG – The commission of inquiry led by retired Constitutional Court Justice Yvonne Mokgoro into the fitness to hold office of advocates Nomgcobo Jiba and Lawrence Mrwebi has recommended the axing of the suspended senior National Prosecuting Authority (NPA) prosecutors.

The Mokgoro Inquiry's 140-page report paints a bleak picture of the country's prosecutions body, which faces serious questions over allegations of malfeasance and political interference in the prosecution of criminal cases.

The inquiry into the conduct and credibility of Jiba, who is the deputy National Director of Public Prosecutions (DNDPP) and Mrwebi, the head of the Specialised Commercial Crimes Unit (SDPP), for six weeks saw 17 witnesses - including the prosecutors - give evidence before the commission as well as two written submissions.

Jiba and Mrwebi's conduct was brought under the microscope at the inquiry following serious criticisms made against them in the courts over whether they had acted without fear, favour or prejudice at all times in the execution of their duties.

The Mokgoro Inquiry found that they were not fit and proper to hold their respective offices because they lacked “complete honesty, reliability and integrity” as advocates.

The senior NPA officials face another hurdle in their fight to keep their jobs and profession as advocates after the General Council of the Bar of South Africa (GCB) approached the Constitutional Court in July 2018 for leave to appeal a Supreme Court of Appeal ruling which overturned a ruling of the North Gauteng High Court in Pretoria that Jiba and Mrwebi be struck from the roll of advocates.

Jiba and Mrwebi are opposing the application by the GCB.

This followed complaints against them in connection with adverse court findings over criminal cases involving, among others, the lawfulness of the decision to drop several serious charges against former Crime Intelligence head Richard Mdluli - which was among the controversial cases probed by the Mokgoro inquiry.

The prosecutors were severely rebuked by Pretoria High Court Judge John Murphy in 2013 over the Mdluli matter and he ordered that all criminal charges against Mdluli be reinstated and that he be subjected to a disciplinary hearing.

"For all of the many reasons discussed, the decision and instruction by Mrwebi to withdraw the fraud and corruption charges must be set aside. It was illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it,” Judge Murphy said in his ruling.

President Cyril Ramaphosa has received the report from the Mokgoro Inquiry and has yet to make a decision on its submissions and recommendations made by its panel.

Earlier this month, the president requested Jiba and Mrwebi to make representations in response to Mokgoro’s report.

The inquiry's concluding remarks underscore the role of the NPA - a critical organ of South Africa's criminal justice system - in upholding the rule of law being “crucial that it is seen to be free from all external pressures which might threaten prosecutorial independence.”

The report noted: “Where officials are mired in controversy and are consistently being taken on review for irrational decision-making, and being found wanting by the Courts, it damages the public confidence.

"The NPA must instil a strong sense of constitutional values and belief in the rule of law. When these values are internalised and fought for vociferously from within the NPA, only then will the institution enjoy the confidence of the citizenry and become the prosecuting authority that South Africans deserve."

These are the key findings of the report by the Mokgoro inquiry:

NOMGCOBO JIBA

• In considering whether Jiba in her capacity as the deputy National Director of Public Prosecutions and in her previous acting role as the National Director of Public Prosecutions she complied with the Constitution, the NPA Act and any other relevant laws in her position, the Mokgoro inquiry found against Jiba.

For example: The inquiry found that Jiba’s authorisation of the racketeering prosecution of former KwaZulu-Natal Hawks head Johan Booysen related to the infamous Cato Manor 'Death Squad' in 2012 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.”

The inquiry also found that Judge Murphy’s remarks that Jiba lied to the court over the Mdluli matter “undermined the principles espoused in section 195 of the Constitution with regards to maintaining a high standard of professional ethics, accountability and transparency.”

• With regard to whether Jiba properly exercised her discretion in relation to instituting, conducting, and discontinuing criminal proceedings on behalf of the NPA, the inquiry found over the Booysen matter:

"The procedure followed in authorising the prosecution against Booysen, considering that she had herself initiated the prosecution process, was found to have been irrational and was set aside. In her capacity as acting NDPP, she failed to properly exercise her discretion in authorising the proceedings. We make this finding without any suggestion as to the guilt or innocence of Booysen."

• Whether Jiba exercised her powers and performed her duties and functions in accordance with NPA prosecution policy and policy directives, the inquiry found that:

"With specific regard to the principles of accountability and transparency which undergird the constitutional ethos of all state institutions, Jiba’s conduct is found wanting. She was not forthcoming with the Courts and did not take them to her confidence."

• With regard to whether Jiba acted at all times without fear, favour or prejudice in connection to her decision - during her tenure as acting prosecutions boss - to establish a little-known special projects division of the NPA headed by Advocate Anthony Mosing which prosecuted politically sensitive cases, the inquiry found that:

"The inconsistencies in the reasons she gave for establishing a national prosecuting team indicates that she acted with favour and with prejudice to the NPA."

• In relation to whether Jiba displayed the required competence and capacity required to fulfill her duties, the inquiry found that:

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

• On the question of whether Jiba in any way brought the NPA into disrepute by any of her actions or omissions, the inquiry was scathing in this regard:

"The series of Jiba’s decisions taken in her capacity as ANDPP [Acting National Director of Public Prosecutions], which were all set aside on review, the comments and criticisms leveled against her by the courts have brought the NPA into disrepute."

LAWRENCE MRWEBI

• Whether Mrwebi, in fulfilling his responsibilities as Special Director of Public Prosecutions, complied with the Constitution, the NPA Act and any other relevant laws in his position as a senior leader in the prosecuting authority, the inquiry found that:

"The Courts have leveled criticisms 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."

• In considering whether Mrwebi properly exercised his discretion in instituting, conducting, and discontinuing criminal proceedings on behalf of the NPA, the inquiry found that:

"In light of the adverse findings by the Courts about the manner in which Mrwebi exercised his discretion to discontinue the prosecution of Mdluli we are of the view that Mrwebi did not properly exercise his discretion.

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

• Whether Mrwebi duly respected court processes and proceedings before the courts as required by applicable prescripts and as a Special Director of Public Prosecutions in the NPA, the inquiry found that:

"By filing court papers out of time without a proper explanation or application for condonation and showing disregard and indifference to directives issued by the Judge President in FUL HC [Mdluli matter], Mrwebi showed that he did not consider it obligatory to obey court directives and to comply with court deadlines. His attitude shows that he did not respect court processes and proceedings as expected from a SD [Special Director].

• In relation to whether Mrwebi exercised his powers and performed his duties and functions in accordance with NPA policy and policy directives, the inquiry found that:

"Mrwebi’s conduct in withdrawing the prosecution of Mdluli when there was a prima facie case and his flawed reasoning for withdrawing that prosecution were inconsistent with the provisions of the Prosecution Policy Directives."

• Whether Mrwebi acted at all times without fear, favour or prejudice, the inquiry found that his decision to withdraw the prosecution of Mdluli showed that he failed to act without favour and to the prejudice of the NPA.

• In determining whether Mrwebi displayed the required competence and capacity required to fulfill his duties at the NPA, the inquiry found that:

"His lack of understanding of the law and legal processes surrounding the Mdluli prosecution, show that he did not display the required competence and capacity required to fulfill his duties."

• Whether Mrwebi in any way brought the NPA into disrepute by any of his actions or omissions, the inquiry found that:

"Mrwebi’s decisions taken in his capacity as Special Director of Public Prosecutions, which was set aside on review, the comments and criticisms leveled against him by the courts have brought the NPA into disrepute."

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