Dear Corruption Watch, the national director of public prosecutions recently announced that not only have charges of fraud and perjury against his deputy, Nomgcobo Jiba, been withdrawn, but she’s been promoted! How can she have a future at the NPA?
Concerned Crime Fighter
Dear Concerned Crime Fighter,
Jiba’s integrity was called into question in the litigation involving charges against KwaZulu-Natal Hawks head Johan Booysen.
In her affidavit she claimed she authorised charges against Booysen on the basis of a particular statement, but that statement came two weeks after she had authorised the charges.
The only reasonable inference is that Jiba lied under oath. Despite that damning evidence, the NPA – now under the leadership of NDPP Shaun Abrahams – has withdrawn charges of fraud and perjury that were filed against her. Freedom Under Law and Corruption Watch have written to Abrahams requesting his reasons for dropping the charges and will expect a full accounting for rewarding her with a promotion.
Despite the NDPP’s empty assurances, it is unclear how the decision to withdraw charges, let alone promote her, can possibly be rational. It is certainly susceptible to challenge, in much the same manner as the decision to withdraw charges against Richard Mdluli was successfully set aside. (Incidentally, that decision was made by Jiba.)
In our view, Jiba should still face two potentially career-ending obstacles. The first is removal from office by the president. According to the NPA Act, a person appointed as a deputy national director of public prosecutions must be “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity”.
One of the statutory grounds for removal of a deputy NDPP – a power afforded exclusively to the president acting within the strict terms of the act governing the NPA – is that they are no longer fit and proper.
The impeachment of Jiba’s integrity in the Booysen litigation warranted her provisional suspension and an inquiry into her fitness to hold office. Given the constitutional importance of the NPA to the administration of justice, as well as the duties owed to courts by legal practitioners generally, the mere suggestion of untruthful evidence should be enough for the president to take steps.
A criminal investigation into perjury is not a prerequisite for the president to act. Indeed, the NPA’s decision to withdraw charges ought to have no bearing on his decision to initiate the removal process in the NPA Act. In other words, the president cannot use the NPA’s decision as a convenient escape. He must bring an independent mind to bear, taking into account the requirements of the act.
The second threat looming for Jiba is an application by the General Council of the Bar to have her struck off the roll of advocates. If Jiba is struck, she will arguably no longer possess “legal qualifications” necessary to entitle her to practise in South African courts.
Her striking would also mean she is not a fit and proper person, since that is the test applied in striking-off applications. It should follow that if Jiba is struck from the roll of advocates, she is no longer qualified to hold office as deputy NDPP.
However, again, only the president may remove her from her position.
What if nothing is done? A failure by the president to order an inquiry into Jiba’s fitness to remain in office would likely be susceptible to challenge on the basis of it being an irrational exercise of public power (or an irrational failure to exercise a power that ought to be exercised).
So, too, would the president’s failure to remove Jiba if she is struck from the roll.
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• This article was first published in Sunday Times: Business Times.