Gerrie Nel and AfriForum to prosecute Nomgcobo Jiba privately

AfriForum today announced that they have instituted legal action to privately prosecute Adv. Nomgcobo Jiba, former acting Director and current Deputy Director of the National Prosecuting Authority (NPA), on charges of fraud and perjury.

Adv. Gerrie Nel, Head of AfriForum’s Private Prosecution Unit, and AfriForum act in the case against Jiba on behalf of Maj. Gen. Johan Booysen, the former Head of the Hawks in KwaZulu-Natal. AfriForum argues that Jiba committed fraud and perjury during the process of charging Booysen with racketeering. AfriForum and Booysen argue that there exists an irresistible inference that Booysen was targeted unlawfully by Jiba after Booysen had started investigating the business operations of Thoshan Panday, a KwaZulu-Natal businessman with close ties to the Zuma family.

Booysen took Jiba’s decision on review and Judge Trevor Gorven set the charges of racketeering aside in the KwaZulu-Natal High Court in Durban in February 2014. Gorven ruled that no rational explanation – not even loosely defined – existed to support Jiba’s decision.

Adv. Mxolisi Nxasana, who at the time replaced Jiba as the National Director of Public Prosecutions, launched an investigation into Jiba’s actions against Booysen in light of Gorven’s ruling. Jiba was subsequently charged with perjury and fraud, after which she appeared in the Regional Court in Pretoria in July 2015. Adv. Shaun Abrahams, who replaced Adv. Nxasana as the National Director of Public Prosecutions, decided – despite the opinion of the two prosecutors assigned to the matter that a strong case existed against Jiba – to withdraw the case against her.

Nel says his office decided to assist Booysen in his application for a nolle prosequi certificate that will allow AfriForum to privately prosecute Jiba on behalf of Booysen.

Nel explains that, should the NPA issue a nolle prosequi certificate, AfriForum is obliged in terms of legislation to start the private prosecuting process within 90 days. “The prosecution will then proceed just like any other criminal case before a judge in a court, except that as prosecutor I will not be in the service of the NPA,” Nel says.

“All citizens are subjected to the laws of the country. No one is exempted. It is a constitutional imperative for the prosecuting authority to adhere to this principle. Since the prosecuting authority appears to have abolished this principle when deciding on the prosecution of politically connected individuals, I have decided to invoke the provisions of the Criminal Procedure Act to institute a private prosecution against Nomgcobo Jiba,” Booysen says.

Kallie Kriel, CEO of AfriForum, says it is in the interest of the principle of equality before the law that Jiba should be prosecuted. “Just because Jiba finds herself in President Zuma’s inner circle doesn’t mean that she is above the law. AfriForum will help ensure that justice prevails through private prosecution – including the President and his inner circle.”

Jiba is also mentioned in Jacques Pauw’s new book The President's Keepers as one of the “keepers ” who find themselves in President Zuma’s inner circle. 

Fact sheet

Why AfriForum is prosecuting Adv. Nomgcobo Jiba

The Constitution of the Republic of South Africa requires the National Prosecuting Authority (NPA) to act without fear, favour and prejudice. Adv. Nomgcobo Jiba, former acting National Director and currently Deputy National Director of the NPA, disregarded these basic legal principles and, in the process, made herself guilty of fraud, perjury and possible obstruction of justice.

Despite a legal opinion by two senior advocates of the NPA that Joba should stand trial on charges of fraud and perjury, the NPA withdrew the criminal charges against her. These charges relate to Jiba’s decision to prosecute Gen. Maj. Johan Booysen on charges of racketeering. Her decision was set aside by the KwaZulu-Natal High Court in Durban. The Court found that her decision was unconstitutional and contrary to legal principles – and therefore illegal.

Background

Booysen, former Provincial Head of the Hawks in KwaZulu-Natal, was charged with racketeering in 2012 after being accused of running a murder gang in KwaZulu-Natal. The prosecution and the necessary certificates for prosecution were authorised by Jiba.

Booysen took Jiba’s decision on review. He argued in court papers that he had been targeted because he had been involved in investigations into corruption by business people with political connections. Judge Trevor Gorven ruled in the KwaZulu-Natal High Court in Durban in November 2014 that Booysen’s prosecution should be set aside.

Judge Gorven found no rational explanation – even loosely defined – existed to support Jiba’s explanation. Her debatable decisions had been arbitrary, contrary to legal principals and therefore unconstitutional. Judge Gorven also found that no relation existed between the information on which Jiba had claimed she had relied on, and the charges of racketeering against Booysen.

In the meantime, Jiba was replaced by Adv. Mxolisi Nxasana as NVG Director. Jiba wanted to appeal the Gorven ruling, but Nxasana viewed the ruling as indisputable and launched an investigated into Jiba’s decision. Subsequently, Jiba appeared in the Regional Court in Pretoria in July 2015 on charges of perjury and fraud. The charges against Jiba were however withdrawn after the arrival of Adv. Shaun Abrahams as new NPA Director – despite a legal opinion by two senior NPA advocates that there had been a strong case against Jiba.

Nxasana had previously submitted a complaint against Jiba to the Bar Council. This resulted in conflict between Jiba and Nxasana. Nxasana was then replaced in a contentious manner by Shaun Abrahams. The review application against Abrahams’s appointment as well as Nxasana’s removal will be heard in the Northern Gauteng High Court in Pretoria in November 2017.

Jiba removed from the Roll of Advocates

Jiba was removed from the Roll of Advocates by the Northern Gauteng High Court in Pretoria on 15 September 2016 after an application from the Bar Council to remove her as a result of sharp criticism from three different courts, including the Court of Appeals.

Despite damning court rulings against her, the NPA refuses to act against Jiba. It is evident that JIba is being protected, as confirmed in court papers by Willie Hofmeyer, a senior NPA advocate. The NPA fails in effecting their constitutional mandate.

It is against this background that AfriForum decided to support Johan Booysen in a private prosecution of Jiba.

Issued by AfriForum, 16 November 2017