IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 17782/2015

In the matter between:

DEMOCRATIC ALLIANCE - Applicant

and

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA - First Respondent

THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES - Second Respondent

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - Third Respondent

NOMGCOBO JIBA - Fourth Respondent

GENERAL COUNCIL OF THE BAR - Fifth Respondent

FOURTH RESPONDENT’S ANSWERING AFFIDAVIT

I, the undersigned,

NOMGCOBO JIBA

do hereby make oath and say that:

1. I am a Deputy National Director of Public Prosecutions (“DNDPP” or “Deputy National Director”) in the office of the National Prosecuting Authority (“the NPA”) and was appointed as such in terms of the National Prosecuting Authority Act 32 of 1998 (“the NPA Act”) by the President as from 22 December 2010. I am also a duly admitted advocate of the High Court of South Africa and was admitted and enrolled as an advocate by the Eastern Cape High Court, Mthatha, on 3 June 2010.

2. I am the fourth respondent in this application.

3. The contents of this affidavit are within my personal knowledge and are true and correct, save where the context indicates otherwise in which case I verily believe them to be true and correct. Where I make submissions of a legal nature, I do so on the advice of my legal representatives, which advice I verily believe to be true and correct.

4. I depose to this affidavit in response to the founding affidavit of James Selfe (“Mr Selfe”), deposed to on behalf of the applicant (“the DA”) in this application for review. The DA seeks an order reviewing and setting aside a decision taken by the first respondent, the President of the Republic of South Africa (“the President”) not to suspend me and institute an inquiry into my alleged misconduct and fitness to hold office. It is therefore the decision of the President that the DA seeks to review and it is therefore primarily for President to oppose this relief and defend his decision.

5. I however have an interest in this matter as the DA seeks an order substituting the decision of the President with a decision in terms of section 12(6)(a) of the National Prosecuting Authority Act 32 of 1998 (“the NPA Act”) to establish an inquiry to determine whether I am guilty of misconduct and whether I remain fit to hold office as a Deputy National Director of Public Prosecutions, and that I be suspended pending the outcome of that inquiry.

6. I wish to state at the onset that I deny that I committed any act that warrants that the President institute an inquiry against me. There is therefore no proper factual basis upon which the President may institute the inquiry that the applicant seeks in his matter. Be that as it may however, I abide the decision of this Honourable Court as regards the reviewing and setting aside of the President’s decision insofar as it relates to the institution of an inquiry. However I emphasize that that I abide the decision of this Court in this regard should not be construed as an admission on my part that there is a proper factual basis for the institution of such an inquiry against me.

7. However the DA goes further and seeks an order reviewing and setting aside the decision of the President not to suspend me, and substituting that decision inter alia with a decision to suspend me. The founding affidavit of Mr Selfe makes various allegations against me. I therefore depose to this affidavit in order to respond to the allegations that have been made against me personally, lest it is assumed that the correctness of these allegations is admitted by my silence, and to oppose the relief sought by the DA insofar as its seeks my suspension.

8. As the DA points out, the fifth respondent, the General Council of the Bar (“GCB”) has brought an application in terms of section 7 of the Admission of Advocates Act 74 of 1964 (“the Admission of Advocates Act”) in which it seeks an order that my name be struck off the roll of advocates, alternatively that I be suspended from practising as an advocate (“the GCB application”). I have opposed that application, and the founding and replying affidavits of the GCB as well as my answering affidavit are attached to the DA's founding affidavit in this application (as annexures “JS1”, “JS21” and “JS20” respectively).

9. I point out that I have also filed, together with an application for leave to do so, a supplementary answering affidavit to the GCB's founding affidavit. For completeness I attach a copy of this supplementary answering affidavit hereto marked “NJ1”. The GCB has in turn filed a supplementary replying affidavit. I attach a copy of the GCB’s supplementary replying affidavit hereto marked “NJ2”.

10. In essence the GCB's application is based on the same allegations against me that the DA relies upon in support for its claim that there is a reasonable belief that I am guilty of misconduct and unfit to hold the office of Deputy National Director. The nature of these allegations relates to the performance of my duties while in the capacity as Acting National Director of Public Prosecutions (“NDPP”), and therefore the head of the NPA, and are based on certain comments made about me in that capacity in the various judgments referred to by the DA in its founding affidavit.

11. My response to the criticisms of my conduct by the Courts in those decisions is set out at length in my answering affidavit in the GCB application. As this application is not aimed at determining my fitness to hold office in relation to these criticisms, I do not repeat my response here but ask that it be read as if specifically incorporated.

12. It appears that the request to the GCB to consider bringing the application to have my name struck from the roll of advocates emanated from the office of the previous NDPP, Mr Mxolisi Nxasana. I have serious doubts about the motivations of the GCB for bringing its application against me and as I pointed out in my answering affidavit to that application, it appears to be part of a political attempt to remove me from the NPA (I refer the Court to paragraph 68 of my answering affidavit in the GCB application).

13. It is also noteworthy that even though the GCB application is also directed against Adv Lawrence Mrwebi and Adv Sibongile Mzinyathi, a Director of Public Prosecutions and a Special Director of Public Prosecutions respectively, the DA only seeks to compel the President to institute an inquiry against me and have me suspended. This is notwithstanding that these positions are also Presidential appointments and the provisions of section 12(6) of NPA Act are made equally applicable to Directors and Special Directors by section 14(3) of the NPA Act.

14. Since the institution of this application by the DA and the postponement of the hearing by agreement to 2 February 2016, a similar application has been launched in the North Gauteng Division of the High Court under case number 89849/2015 by the organisation known as Freedom Under Law (“FUL”) (“the FUL application”). The FUL application is based on the same three judgments referred to by the DA in its founding affidavit. FUL inter alia seeks an order reviewing and setting aside the same decision of the President not to suspend me and institute an inquiry in terms of section 12(6) of the NPA Act. This relief is in all material respects identical to the relief sought by the DA, although FUL characterises the decision taken by the President as a “failure” to act. I attach hereto marked “NJ3” a copy of the notice of motion in the FUL application. A copy of the full set of papers will be made available to Court at the hearing of this matter if necessary.

15. The FUL application goes further and seeks similar relief against Adv Mwrebi and an order reviewing and setting aside the decision to withdraw criminal charges of fraud and perjury against me. In addition FUL sought an urgent interdict preventing me from carrying out my duties as DNDPP. This application was heard on 17 November 2015 and was struck from the roll for lack of urgency. The Honourable Mr Justice Prinsloo who presided over that application described the urgent application for an interdict as an abuse of process.

16. I attach hereto marked “NJ4” a copy of the judgment of Mr Justice Prinsloo.

17. As I have set out in my answering affidavit to the GCB’s application, in all three of the matters concerned in which the Judges made adverse comments against me, my involvement in these matters was through a team of officials at the NPA (acting through the Legal Affairs Division or “LAD” that deals with civil litigation involving the NPA) who in turn instructed the State Attorney’s office and briefed senior counsel to represent the NPA and advise on matters of law and strategy. The NDPP does not run the NPA or litigate on its behalf alone. In my capacity as the Acting NDPP in the matters concerned, I relied in good faith on information and advice provided to me.

18. Section 42 of the NPA Act in fact provides that no person shall be liable for anything done in good faith under the NPA Act. I respectfully submit that the criticisms of the Courts were unjustified and do not indicate that I am not a fit and proper person to practice as an advocate of the High Court or to hold the office of Deputy National Director. In any event I respectfully submit that criticism by a Court does not necessarily entail that a person should be disciplined and/or suspended.

19. It is important that judicial criticisms be read and understood within the context of the independence of the NPA as provided for in the Constitution and the NPA Act. Like any other litigant, the NPA must be able to withstand and deal with judicial criticism, albeit that at times such comments are not supported by the facts. That said, it cannot be the case that whenever criticism is levelled against a member of the NPA, it results in a charge of misconduct being instituted against that member.

20. Institutionally it would be disastrous for the independence of the NPA if every time there are judicial criticisms against its staff for the performance of their duties in good faith, an enquiry is instituted into their fitness to hold office. To do so would be an affront on, and seriously attenuate, the independence of the NPA. Operationally, it would be equally disastrous for the functioning of the NPA if every time an allegation of misconduct was lodged against a senior member of the NPA that member had to be suspended. It does not follow that a member must be suspended while allegations are investigated.

21. A suspension without a hearing generally constitutes an unfair labour practice as defined in section 186(2)(b) of the Labour Relations Act 66 of 1995. It is well established in our law that even a suspension pending a disciplinary inquiry is required to comply with the principles of natural justice which include a fair hearing prior to the decision to suspend being taken.

22. This accords with the established practice that the President affords the NDPP or a Deputy National Director an opportunity to make submissions of all representations to him on any intention to suspend.

23. As a matter of administrative law, a decision that amounts to administrative action as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), which the DA contends the impugned decision of the President to be (in paragraph 107 of the founding affidavit), also attracts the obligations of procedural fairness laid down in PAJA. While I do not admit that the decision constitutes administrative action - a decision taken by the President in terms of section 12(6)(a) is executive action - a failure to comply with those obligations before suspending me would render my suspension unlawful and invalid.

24. Linked to my right to procedural fairness is my constitutional right to dignity. It is also well established that the freedom to engage in productive work – even where this is not required in order to survive – is an important component of human dignity as it affects one's self-esteem and sense of self-worth. The substantial social and personal consequences of a suspension, even with pay have a negative impact on one's dignity. The Honourable Mr Justice Prinsloo, in striking from the roll the urgent application brought by FUL, specifically referred in paragraph 26 of his judgment, to the impact that the interdictory relief sought by FUL (which was in essence my immediate suspension from office) would have on my life and career.

25. It is clear from the general tenor of Mr Selfe’s founding affidavit and certain specific statements therein that the DA already considers me guilty of the allegations of misconduct. For instance I refer the court to the final sentence in paragraph 84.2 of the founding affidavit. An immediate suspension, which is the effect of the order of the DA seeks, would only fuel this perception that I am guilty before an inquiry can even begin.

26. It is therefore crucial to both the fulfilment of my rights to procedural fairness and my right to dignity that I be afforded a fair hearing prior to any decision by the President to suspend me.

27. The DA seeks to circumvent and curtail my rights in regard to any possible suspension by seeking an order that this Honourable Court substitute the decision of the President with a decision in terms of section 12(6)(a) of the NPA Act that I be suspended pending the outcome of an inquiry. A summary suspension without a hearing can only be justified in exceptional circumstances and I deny that such circumstances exist in this case.

28. The provisions of section 12(6)(a) of the NPA Act do not entail that a suspension must as a matter of necessity follow upon the institution of an inquiry in terms of this section.

29. The DA contents itself with making sweeping and unspecified allegations that that every day that I spend at the NPA undermines the public perception of its independence, integrity and effectiveness and alleges that there is an increased risk of me taking biased and dishonest decisions. There is no basis for such allegations. The DA also places much reliance on the fact that my new portfolio as a DNDPP is head of the National Prosecuting Service (“NPS”), a portfolio that I previously held before being moved to head of the LAD.

30. The DA further does not allege any real apprehension of harm.

30.1. It does not allege that I will dishonestly and in a biased manner discharge my duties as head of the NPS, that the integrity of any on-going prosecution is at risk, or that my mere presence at the NPA renders it non-functional.

30.2. It does not allege that my decisions and the performance of my duties as a Deputy National Director will not be adequately reviewed by the NDPP.

30.3. It fails to take into account that the criticisms against me relate to events that occurred between two and three years ago, in respect of institutional actions or conduct that were a collective product of able and competent lawyers both within and outside the NPA, and which were directed at me just because I happened to be the head of the institution at the time.

31. Finally, the relief the DA seeks by means of an order that this Honourable Court substitute the decision of the President with its own decision that I be suspended pending the outcome of an inquiry, fails to take account of the separation of powers doctrine and the constitutional requirement that the NPA be independent. The reasons proffered by the DA as to why this Court should substitute its own decision (at paragraph 140 of the founding affidavit) do not, in view of the constraints imposed by the separation of powers doctrine, justify such a substitution. I shall respond to these reasons more fully below.

32. It is worth noting that FUL relied for the interdictory relief sought by it in the FUL application on the same type of broad and unspecified allegations that my continued performance of my official duties jeopardizes dozens of critical prosecutions and investigations daily and brings the law into disrepute. As the Honourable Mr Justice Prinsloo pointed out however, no details of such alleged transgressions were disclosed in FUL’s founding papers.

33. I now respond to the individual allegations contained in the DA’s founding affidavit insofar as this is necessary.

33.1. Many of the allegations are of a legal nature and will be addressed in argument at the hearing of this matter insofar as is necessary. Where I do not deal expressly with a specific factual allegation or a conclusion of law made by Mr Selfe but it is nevertheless inconsistent with what I have set out in my answering affidavit in the GCB’s application, I request that it be read as being denied as if specifically traversed.

33.2. As I have indicated, the DA's primary relief is the review and setting aside of a decision of the President. Where I do not deal with an allegation of fact or a submission of law in relation to the decision of the President this should not be construed as accepting the correctness of these allegations or submissions by the DA.

Ad paragraphs 1 to 4

34. I note the content of these paragraphs.

Ad paragraph 5

35. I deny that the High Court and the Supreme Court of Appeal have repeatedly found me guilty of dishonesty and unbecoming conduct. I accept that these courts have criticised me or to be exact “the office of the NDPP” in judgments referred to by the DA, and I have set out my response to this criticism in my answering affidavit to the GCB's application. It is however an overstatement to say that I have been found "guilty of dishonesty".

36. I further deny that the committee lead by Mr Justice Yacoob (“the Yacoob Committee”) advised that criminal charges of fraud and perjury should be laid against me. It referred in general terms to existing prosecutions and recommended that these be continued, subject to being withdrawn on valid grounds. The relevant part of the report of the Yacoob Committee dealing with me personally is at paragraph 37 of that report. I was indeed criminally charged but these charges have been withdrawn because there were no reasonable prospects of a successful prosecution.

37. The Yacoob Committee further did not recommend that I, or any other person should be suspended. In paragraph 39 the Yacoob Committee stated that they were of the view that the NDPP should recommend to the President that a judicial commission of enquiry should “determine whether there has been improper conduct on the part of senior office bearers within the National Prosecuting Authority”.

38. As I pointed out in my answering affidavit to the GCB application, it is not clear on what authority the Yacoob Committee was appointed. It appears from the report that the terms of reference were inter alia to conduct an investigation and compile a report regarding allegations of unethical and unprofessional behaviour. None of the officials in the hierarchy of the NPA including the NDPP have powers to institute an inquiry against me through the Yacoob Committee. The President is required to sanction such an inquiry and to the extent that the former NDPP appointed the Yacoob Committee without the President’s sanction, he acted outside of his legal powers and outside the prescripts of the NPA Act. 

39. The Yacoob Committee in fact stated that the report was not conclusive. I also point out, as I did in my answering affidavit in the GCB application, that I did not take any part in the Yacoob Committee’s investigation. No evidential material was ever provided to enable me to determine the factual basis of the Yacoob Committee’s report. I do not know what evidence was given by which witness and am unable to assess the competency of the witnesses in relation to any issue they may have testified about to the Yacoob Committee. I do not know if those witnesses were ever cross-examined and if so by whom.

Ad paragraphs 6 and 7

40. I deny that there is a legitimate basis to suspend me, whether based on the GCB application or otherwise.

Ad paragraph 8

41. The parties have agreed to a timetable for the further conduct of this matter and a hearing on 2 February 2016. I however deny that this application is urgent. The DA has not made out that case as to why this matter cannot be heard in the ordinary course. It does not rely on any specific allegations of harm but simply broad statements that every day I remain in office undermines the NPA and the Courts.

42. The most recent of the decisions of the High Court and the SCA, which form the basis of the DA's complaints against me, was handed down on 28 August 2014, more than a year prior to the DA launching this application. I deny that the recent change in my portfolio as a DNDPP renders it so. Similarly the GCB application, which was launched on 1 April 2015 is not contended to be urgent by the GCB.

43. I mention again that the FUL application was struck of the roll for want of urgency. FUL similarly contended that the review relief sought by it was urgent.

Ad paragraph 9

44. I deny each and every allegation contained in this paragraph as if specifically traversed. In particular I deny that there have been “repeated findings of serious misconduct by the courts”. I also deny that my continued presence in office as a Deputy National Director is inconsistent with or (to the extent that this is implied) threatens the independence of the NPA.

Ad paragraph 10

45. I deny that the only rational course of action for the President to take is to suspend me. This is a power that is within the exercise of the President’s discretion. The President may elect to institute an inquiry into my fitness to hold office, indeed as I pointed out in my response to the GCB’s application, this is a much fairer process than the GCB’s application by which I would be able to defend myself against the allegations of misconduct against me.

46. This does not necessarily mean that I should be suspended. The decision to suspend may in any event only be exercised (not must) if there are proper factual grounds to hold an inquiry. The President, after calling upon me to make representations as to why I should not be suspended pending such an inquiry may well decide that this is not necessary, in which case there would be no need for any suspension. The President has not yet done so. It is therefore inappropriate for the DA to seek to impose upon the President what the outcome of his decision should be, and effectively to deprive me of any opportunity to make representations to the President. In fact I aver that in the circumstances of this matter, there are no proper factual grounds upon which an inquiry into my fitness to hold office may be made.

Ad paragraphs 12 to 18

47. I note the content of these paragraphs.

Ad paragraph 19

48. I note the citation of the GCB, however I deny that the GCB application is the sole reason why the President has not suspended me.

Ad paragraphs 21 to 58

49. My response to the criticisms of the Courts in the decisions referred to in these paragraphs is set out in detail in my answering affidavit to the GCB's application. I ask that the relevant paragraphs of that affidavit be read as if specifically incorporated herein, as follows:

49.1. The Mduli matter: paragraphs 79 to 199;

49.2. The Booysen matter: paragraphs 200 to 240;

49.3. The Spy Tapes matter: paragraphs 241 to 261.

50. I therefore deny each and every allegation contained in these paragraphs as if specifically traversed insofar as they are inconsistent with what I have set out in my answering affidavits in the GCB application. I however wish to respond to some of the individual allegations made by the applicant in these paragraphs.

Ad paragraph 42

51. I deny each and every allegation contained in this paragraph as if specifically traversed. It amounts to pure speculation.

Ad paragraph 46

52. I refer the Court to paragraphs 212 to 217 of my answering affidavit in the GCB application where I set out my response to the issue regarding the statements.

Ad paragraph 49

53. I deny that Gorven J found that I had lied under oath. This is indeed an exaggeration. As appears from the extract of paragraph 34 of his judgment quoted by the DA in paragraph 48 of its founding affidavit, the Court stated that it was entitled to draw an adverse inference. I deny that this amounts to a finding that I lied under oath. An inference is not a fact.

54. While I admit that I was charged with perjury, those charges have, as the DA acknowledges, been withdrawn. As part of the relief it seeks in the FUL application, FUL seeks the reviewing and setting aside of the decision to withdraw these charges against me. There was no proper basis in fact and/or in law to have charged me in the first place. The decision to prosecute me was a gross abuse of prosecutorial discretion. The decision to withdraw the charges was indeed a correct one.

Ad paragraph 58

55. With respect, I deny that the criticism of the SCA was justified. This matter concerned the interpretation of the SCA's earlier directive, the terms of which order were, with respect, not unequivocal. I deny that I "attempted to delegate the power to determine what did or did not fall within the ambit of the SCA's order to Mr Zuma". On the advice of the NPA’s legal representatives it was decided that an opportunity ought to be given to Mr Zuma’s legal representatives to indicate whether they claimed privilege on the grounds that those documents formed part of the representations or not, which advice was sound and with which I complied. This was in compliance with the SCA order and not forestalling compliance as the court suggests.

56. There is further nothing in the judgment of the SCA to suggest that my view of the matter was not held in good faith. I accept that the SCA criticised me (or more accurately the “office of the NDPP”) for not taking an "independent view" about confidentiality. I respectfully submit that this was a result of adopting a cautious approach, in order to ensure that I did not unwittingly infringe on the rights of either of the parties in the matter. I respectfully submit that this does not amount to conduct that is less than objective, honest and sincere and does not render me not fit and proper to practice as an advocate. 

Ad paragraphs 59 and 60

57. My response to the criticism of the judges in these matters is set out in my answering affidavit to the GCB application. I deny that this criticism justifies a conclusion that I am not fit and proper to practice as an advocate or that I lack the basic integrity and independence to perform the functions of the NDPP (or DNDPP).

Ad paragraphs 62 to 64

58. I have no personal knowledge of the content of these paragraphs.

Ad paragraphs 65 to 68

59. I have referred to the report of the Yacoob Committee already. I deny the presumption made in paragraph 67 that the Yacoob Committee was referring specifically to me in relation to the institution of criminal charges. The only paragraph in the report dealing with me is, as I have already mentioned, paragraph 37 which is reproduced by the DA in the paragraph under reply. I however repeat that I did not take any part in the committee’s investigations nor was I provided with any evidence, witness statements or annexures, upon which the report is based.

60. The report of the Yacoob Committee when referring in non-specific terms to “certain criminal charges” in fact expressly accepted that the charges may ultimately be withdrawn in accordance with fairness and prosecution policy (at paragraph 31).

Ad paragraphs 69 to 71

61. I have no personal knowledge of the content of these paragraphs.

Ad paragraph 72

62. As I have pointed out these criminal charges have been withdrawn as there are no prospects of a successful prosecution.

Ad paragraph 73

63. I note the extract from the Annual Report of the NPA but deny the correctness of the submissions set out in this extract.

Ad paragraphs 74 to 76

64. I have no personal knowledge of the content of these paragraphs.

Ad paragraph 77

65. I have opposed the GCB application and questioned the motives for bringing it.

Ad paragraphs 78 and 79

66. I deny the connection that the DA seeks to draw in these paragraphs between the former NDPP’s campaign to remove me from office and his suspension.

Ad paragraph 80

67. I note the opportunity provided to Mr Nxasana to make representations to President on why he should not be suspended. I too would be entitled to such a fair process prior to the President taking a final decision to suspend me. The relief the DA seeks would deprive me of this.

Ad paragraphs 81 to 83

68. I note that the content of these paragraphs form the subject matter of pending litigation as referred to by the DA. I have no personal knowledge of these allegations.

Ad paragraph 84.1

69. Save to admit that the charges against me were withdrawn, I deny each and every allegation contained in this paragraph as if specifically traversed. The charges were withdrawn as there were no prospects of a successful prosecution.

Ad paragraphs 84.2 and 85

70. I deny that I previously held a "far less powerful position" when the head of the LAD. I continue to rank equally with the other Deputy National Directors and we simply carry different responsibilities. The organisational re-shuffle does not vest me with day-to-day decision making powers in regard to individual prosecutions. I remain, as prior to the re-assignment of responsibilities, accountable to the NDPP for all major decisions. I did not receive any change in my salary, whether an increase of a decrease, as a result.

71. I also point out that I was previously, prior to being moved to the portfolio of head of the LAD, the head of the NPS. I therefore deny that I was promoted.

72. The comments in this paragraph further reveal the DA’s true attitude: that I am already guilty of “repeated misconduct” and should therefore be disciplined. This is patently not correct. This attitude runs contrary to the provisions of the NPA Act which prescribe strictly the manner in which a Deputy National Director may be removed from office.

Ad paragraph 86

73. I have referred to the GCB application above. As pointed out, I question the motives behind the GCB application.

Ad paragraphs 87 to 91

74. I have no personal knowledge of the content of these paragraphs.

Ad paragraph 92

75. I deny each and every allegation contained in this paragraph as if specifically traversed.

Ad paragraph 93

76. I admit the structure of Part V of the founding affidavit set out in this paragraph, but deny the correctness of the allegations contained in the sub-paragraphs.

Ad paragraphs 94 to 103

77. The content of these paragraphs constitute legal submissions which will be addressed in argument at the hearing of this matter.

Ad paragraph 104

78. I deny that NPA Act contemplates that a suspension is necessary in every instance that allegations of misconduct are made against a Deputy National Director. The power to suspend is granted to the President as part of the mechanisms aimed at ensuring the independence of the NPA, which is required by section 179(4) of the Constitution.

79. In this regard I wish to illustrate this point by way of two examples. The examples illustrate that this is not the first time that allegations have made against a Deputy National Director and in the two instances cited it has not been necessary either to hold an inquiry into their fitness to hold office or to suspend them. Nor was there a call by the DA for either of those decisions to be taken in either instance.

80. The first instance involves Mr Willie Hofmeyr who is the Deputy National Director now responsible for LAD but at the time, the Asset Forfeiture Unit (AFU). He was accused of a serious allegation of fraud and corruption in the handling of the matter involving David King in the latter’s battle with SARS. David King laid criminal charges against him which were thoroughly investigated by the police.

81. At all material times during the investigations there never was a need to suspend Mr Hofmeyr. The DA also did not bring an application of the type that it has now brought against me, to have him suspended or to compel the President to institute an inquiry into his fitness to hold office. He continued to occupy office and perform his duties until the investigations were finalized. The prosecutor assigned to the matter at the time decided to decline to prosecute. That was the end of the matter.

82. The second instance involves Adv Silas Ramaite who is the Deputy National Director now responsible for the administration but at the time the National Specialized Services Division (“NSSD”). He was arrested for drunken driving and was incarcerated in a police cell. He was released the following day. Criminal charges were laid against him by the complainant of the vehicle with which he collided.

83. Criminal investigations were conducted to finality while he continued carrying out his duties in the NPA. Once investigations were finalized the docket was submitted to a prosecutor under a DPP for Northern Gauteng, under whose jurisdiction the matter fell, in the normal course for a decision. The decision of the prosecutor with which the DPP concurred, was to decline to prosecute. The charges were thereafter withdrawn. That too was the end of this matter.

84. Both of these matters were attended to by me in my capacity as an acting NDPP at the time. I was aware of them from the investigative stage until they were finalized, as they concerned senior officials of the NPA. I informed the President about them and their outcomes through the former Minister of (at the time) Justice and Constitutional Development.

85. Thus it does not follow that simply because there are allegations of misconduct made against a DNDPP that the President must therefore institute an inquiry into the Deputy National Director’s fitness to hold office. Equally it does not follow that because the allegations are made there must be a suspension.

86. Save insofar as it is consistent with what I have set out above, I deny each and every allegation contained in this paragraph as if specifically traversed.

Ad paragraphs 105 to 107

87. I note the DA's contention in these paragraphs that a decision by the President to suspend a Deputy National Director is administrative action to which PAJA is applicable. As I have pointed out above, this would mean therefore that the decision attracts the obligations of procedural fairness, which I submit would include the right to a fair hearing prior to the decision to suspend being taken.

88. I however do not admit that the decision amounts to administrative action. A decision of the President taken in terms of section 12(6)(a) of the NPA Act is quintessentially executive action. Argument will be addressed on this aspect at the hearing of the application.

Ad paragraph 108

89. I do not accept that the decision not to suspend me is irrational. The DA's argument is based on the incorrect premise that whenever there may be reason to institute an inquiry into the fitness of a Deputy National Director to hold office, a suspension must necessarily follow. This is a question of interpretation of the provisions of section 12(5) and (6) of the NPA Act.

Ad paragraph 109

90. I deny that there are "charges" against me. The remainder of the allegations in the sub-paragraphs of paragraph 109 are dealt with in my answering affidavit to the GCB application.

Ad paragraph 110.2

91. I deny the suggestion in this paragraph that there was somehow a connection between the appointment of Adv Shaun Abrahams as NDPP and the withdrawal of the charges of fraud and perjury which were instituted against me.

Ad paragraph 111

92. I have dealt with the submission contained in this paragraph above. For the reasons I have already addressed, I deny that my suspension is the only rational course of action for the President to take. I further deny that my immediate suspension is necessary in order “to prevent the risk of further dishonesty and misconduct”. The basis of the complaints against me have been in the public domain for a number of years now. There is no suggestion of any other conduct or basis to institute an inquiry into my fitness to hold office.

Ad paragraph 112

93. I deny that the President is obliged to institute an inquiry as the DA alleges. This is in any event a legal question which will be addressed in argument at the hearing of this matter.

Ad paragraph 113

94. I deny that the NPA Act requires that the President must suspend me, even if he decides to institute an inquiry into my conduct. This is a legal question which will be addressed in argument at the hearing of this matter.

Ad paragraph 114

95. I deny that the decision of the President is unlawful or irrational on the grounds alleged by the DA, or at all.

Ad paragraph 115

96. The DA misconstrues the nature of an application in terms of section 7 of the Admissions of Advocates Act and the locus standi conferred on the GCB and its constituent members to bring such an application. The GCB brings an application of this nature to place information before the Court for it to exercise its disciplinary function over advocates. Whether the Court hearing the GCB application will exercise its disciplinary function against me will depend on whether or not it finds that it is satisfied that I committed an act of misconduct which warrants that it does so. The GCB application contains no more than mere allegations which the Court must still consider and decide whether it agrees with GCB’s assertions to discipline me. 

Ad paragraphs 116 to 118

97. In my answering affidavit in the GCB's application I contended that a finding by the Court in that application that I am not fit and proper to practice as an advocate, would undermine the process for the removal from office of a Deputy National Director provided for by section 12(6)(a) of the NPA Act, by essentially disqualifying me from holding the position of Deputy National Director and rendering the inquiry moot. It would do so on the basis of motion proceedings in which I am deprived of the right to a fair hearing that the provisions of the NPA Act envisage.

98. The NPA Act is the national legislation specifically envisaged by section 179(3) of the Constitution of the Republic of South Africa to ensure that Directors of Public Prosecutions (including Deputy National Directors) are appropriately qualified and provides for a mechanism for determining whether a Deputy National Director is a fit and proper person to hold office. The GCB application therefore seeks my removal from the position of a Deputy National Director through the general disciplinary powers applicable to all advocates. This however circumvents the specialised process prescribed by the NPA Act, which is aimed at giving effect to the constitutional independence of the NPA.

Ad paragraph 119

99. I stand by what I said in my answering affidavit to the GCB application regarding the inappropriateness of bringing such an application when the NPA Act specifically provides for the circumstances in which a Deputy National Director may be removed from office.

Ad paragraph 120

100. I deny that my continued occupation of the office of DNDPP undermines the independence and impartiality of the NPA.

Ad paragraph 121

101. I deny the relevance of the cases referred to in these paragraphs. Each case must be determined on its own merits. I have referred to two instances above where senior members of the NPA were not suspended following allegations of misconduct against them.

Ad paragraph 122

102. I deny the content of this paragraph.

Ad paragraphs 123 and 125

103. I have addressed the nature of the GCB application above. The GCB has indeed not sought to urgent or otherwise interdict me from carrying out my functions as a Deputy National Director. The content of these paragraphs is in any event a legal question which will be addressed in argument at the hearing of this matter.

Ad paragraph 124

104. The pleadings in the GCB application are indeed closed. I deny that my opposition to that application in any way supports the DA's claim to the relief it seeks. I am naturally entitled to oppose such an application and to exercise any right of appeal I may have. With regard to the relief sought by the DA I wish to reiterate that I am not guilty of any misconduct that warrants the institution of an inquiry against me and my suspension.

Ad paragraph 126

105. I deny that my approach to difficult decisions is simply to do nothing. This allegation is gratuitous and unnecessary.

Ad paragraphs 127 and 128

106. Save to admit that the NPA and the courts must be seen to be independent, I deny each and every allegation contained in these paragraphs as if specifically traversed and in particular that my continued holding of the office of Deputy National Director undermines confidence in the NPA and the courts. On the contrary ordinary people in this country that have no political agendas have confidence in the work I do, the NPA and the Courts.

Ad paragraph 129

107. I deny each and every allegation contained in this paragraph as if specifically traversed.

Ad paragraphs 130 to 132

108. I deny each and every allegation in these paragraphs as if specifically traversed. I specifically deny that I acted to the advantage of Mr Zuma regarding the spy tapes or that I sought to protect his alleged ally Mr Mdluli. The conclusions drawn in this paragraph are unreasonable, unsubstantiated and scandalous.

Ad paragraphs 133 to 136

109. I deny each and every allegation in these paragraphs as if specifically traversed. These paragraphs constitute legal submissions which will be addressed in argument at the hearing of this matter.

Ad paragraph 137

110. I deny each and every allegation in this paragraph as if specifically traversed.

Ad paragraphs 138 to 141

111. I deny that the submissions in these paragraphs justify an order that this Honourable Court substitute the President’s decision with that of its own. Notwithstanding that a court may be in a position to determine whether a suspension is justified, the question is whether it should do so in light of the separation of powers concerns. I deny that the President has exhibited a clear bias in my favour or that my suspension is the only conclusion. Finally I have already addressed the absence of any grounds of harm that the DA purports to establish that my continued occupation of the office of Deputy National Director allegedly causes.

Ad paragraphs 142 to 148

112. I deny that this matter is urgent or that the reasons set out by the DA in these paragraphs justify urgency.

Ad paragraph 149

113. I deny the content of this paragraph. The application should be dismissed with cost.

114. In the circumstances, I abide the decision of the court insofar as it relates to the decision to institute an inquiry in terms of section 12(6)(a) of the NPA Act if the Court finds there are grounds to do so. Insofar as the relief sought by the DA includes the institution of an inquiry against me when there are no proper factual grounds to do so as comprehensively set out in the my answering affidavit in the GCB application and my suspension, the application should be dismissed with costs such costs to include the costs of two counsel.

115. In concluding I would like to bring the following issues to the attention of this Honourable Court.

116. I have been politically targeted by people within and outside the NPA, including the DA in this application, with a view to removing me from office under the guise of upholding the rule of law and the principle of legality. What in truth this political targeting i.e. political interference is to undermine and violate the independence of the NPA. This is evident from what I have set out in response to the GCB application as well as the most recent institution of the FUL application for what is in essence the same relief sought by the DA in this application. This application too forms part of the abuse of the Court process to remove me from office.

117. Further proof of this is what I have stated above in regard to the handling of allegations of misconduct against other Deputy National Directors, Mr Hofmeyr and Adv Ramaite. Both faced criminal investigations for serious allegations. At no stage was there a submission to the President to have them suspended from office or have an inquiry instituted into their fitness for office. Equally, at no stage did the DA or any other group purporting to act in the public interest in bringing various urgent applications against me, ever canvass or agitate for the institution of an inquiry against them or their suspension from office.

118. Consistency is one of the hall marks of fair labour practices. Those agitating for my removal from office, including the DA, cannot simply pick and choose their target for suspension and the institution of an inquiry. If there was any genuineness in their assertions and in this application, based on principle rather than the personality they are against, they would have been consistent called for the suspension and for the institution of an inquiry in every instance in which there are allegations of misconduct raised against a Deputy National Director. Targeting me is a gross violation of my rights to fair labour practices and my suspension and an inquiry against me would equally be unfair and unlawful for this reason.

119. Equally the President would be inconsistent and would commit a gross violation of my right to fair labour practices if he were to suspend me when he had not suspended Mr Hofmeyr and Adv Ramaite, though they faced serious allegations.

120. Lastly I wish to state that in the GCB application allegations are made against Adv Mrwebi, Adv Mzinyathi and myself. The DA has opted to target me alone and single me out for suspension and for the institution of an inquiry. All three of us are, in terms of the NPA Act, Presidential appointees. I aver that this inconsistency demonstrates the unfairness and irrationality of the relief that the DA seeks against me. It also supports my assertion that I am a target of a political attempt to remove me from office.

121. The DA’s application insofar as it has targeted me, is selective application amounts to a gross abuse of the court process. I accordingly pray that it be dismissed with costs such costs to include the costs of two counsel. 

NOMGCOBO JIBA

I certify that the deponent acknowledged to me that she knows and understands the contents of this declaration, has no objection to taking the prescribed oath and considers the prescribed oath to be binding on her conscience. The deponent thereafter uttered the words: I swear that the contents of this declaration are true, so help me God’. The deponent signed this declaration in my presence at ………………………… on this the …… day of ……………………………… 2015.

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 COMMISSIONER OF OATHS