Spy Tapes: The compromised Jiba cannot stay at the NPA, that’s why we took her to court

13 May 2016

The Democratic Alliance has argued in the Western Cape High Court for the suspension from office of the Deputy National Director of Public Prosecutions, Nomgcobo Jiba.  The DA followed this course of action because, similarly to the Simelane matter, the President, when he appointed her, could not possibly have applied his mind rationally to the appointment.  The controversies surrounding her at the time were sufficient to disqualify her.  Her subsequent odious behavior, both as Acting NDPP and as DNDPP now certainly make her unfit hold any office in the NPA. 

The continuation in office of Jiba, and the effective promotion of Jiba to the Head of the NPS, effectively the second most powerful position in the NPA, demonstrates further that she retains power despite her obvious flaws. This can only be so because she has the favour of the President, and that Abrahams is nothing but a pawn.  In effect, he has placed her in control of all prosecutions in the country.  Effectively, she will make final decisions on whether to institute contentious prosecutions, or decline to prosecute in contentious matters.

In law, this final decision rests with Abrahams as the NDPP.  In fact, it is quite clear that Abrahams is not in control at the NPA, and he is little more than a puppet on a string controlled by Jiba, and ultimately the President.  He demonstrated this very crisply by passing the proverbial buck when he denied making the decision to withdraw the prosecution against Jiba, blaming the hapless Marshall Mokgathle. 

To suggest that a prosecutor holding the rank of Deputy DPP took a final decision regarding a sitting DNDPP is so far-fetched as to border on the insane. In an institution such as the NPA this is simply unheard of. The untruth of this scenario is demonstrated clearly in the affidavit deposed to by Willie Hofmeyr, who attached the email correspondence regarding this decision. It is blatantly clear that the decision emanated from the office of the NDPP.  The reasons given for the withdrawal of charges against her are so tenuous in law as to be laughable.

What the withdrawal did do, coming days after Abrahams was appointed, is make it clear that Abrahams was never going to be the independent, fearless prosecutor he promised and the country needed, but was merely filling a post that Jiba is too damaged to hold.  His appointment of Jiba as head of the NPS merely confirmed this position.  

It paved the way for her to effectively be the go-to person for the Spy Tapes decision that was pending and very problematic.  It was clear, even then, that the decision was in all probability not going to go the way of the President.

So now we have the decision.  It is scathing of Mpshe, of the irrationality of the decision to withdraw the charges of fraud, corruption and racketeering against the President.  It places the NPA in the poorest possible light.  But more importantly, it sets aside the decision to withdraw the charges, thereby re-instating the initial decision to charge the President.  The decision on whether to proceed with the prosecution or to lodge an appeal rests essentially with Jiba.  Abrahams has shown his colours.  He is not the man who is going to be making the decision, regardless of whose signature will be affixed to the documentation.

The President appointed first the rather ineffective Mpshe to protect him, then appointed Menzi Simelane to cement his position.  When the DA got rid of Simelane, his go-to person was Jiba.  She was appointed in a similar rank leaping fashion to Abrahams, to take up the slack when it became clear that Simelane was a lost cause. She has demonstrated her undivided loyalty to Zuma on several occasions, including by the withdrawal of charges against Mdluli.  When it was clear that her permanent appointment would not be tolerated, Nxasana was appointed, but was quickly dispatched when it became clear that he was not the yes-man the President thought he would be.  

To appoint Abrahams, from the post of Senior State Advocate to the post of NDPP can be equated to promoting a child in grade six straight to grade twelve.  He  cannot be taken seriously. Jiba is there to protect the President, and whatever decision is taken, be sure that she has a plan in place to let the President off this one unscathed as well.

But never forget that the Shaik prosecutor, Adv Billy Downer SC, is still with the NPA.  He is arguably the most competent prosecutor the NPA has.  He is familiar with the case, the documents and has the ability to be ready to prosecute at very short notice.  I have no doubt that he also has a full set of documents ready and able to proceed.  He is that old-school type of prosecutor, the belts and braces type, who would have kept a set of relevant documents, no matter how large, in case the passage of time or other forces caused some important documents to disappear or become lost. He knows this case intimately. If the NPA decides to go ahead, and does not make use of Downer as the lead prosecutor, then we will all know the reason why.

Issued by Glynnis Breytenbach, DA Shadow Minister of Justice, 13 May 2016