NPA & DEMOCRATIC ALLIANCE ATTACKS ON ADVOCATE JIBA
6th April 2015
The Higher Education Transformation Network (HETN) hereby expresses its strongest condemnation for the underhanded manner in which the National Director of Public Prosecutions (NDPP), Adv.Sizwe Nxasana and his National Prosecuting Authority (NPA) management are consistently mishandling sensitive matters of national importance as well as their publicization of wild, untested accusations against Advocate Nomgcobo Jiba. We condemn the pattern and practice of abusing court processes to unfairly tarnish the reputation of senior black prosecutors and then seeking their removal on the basis of flimsy or non-existent evidence.
The Network strongly condemns the manner in which rogue elements within the NPA have made common cause with anti-transformation rightwing ideologues from the Democratic Alliance (DA) and Afriforum / Solidariteit to launch full-scale attacks on senior black prosecutors. These rightwing ideologues such as disgraced Adv. Glynnis Breytenbach have been unabashed in spewing their racist propaganda against Adv. Nomgcobo Jiba whom they have continually accused of all kinds of sins for years.
We urge President Jacob G. Zuma to reject the suspension of Adv. Jiba and to resist pressure from these politically motivated groups. It is critical that the President ignores these racist utterances from persons who seek Adv. Jiba's removal simply based on their ideological predisposition. The Network will not hesitate to join legal action in defence of Adv. Jiba should the Democratic Alliance and other evil forces of racism persist in legal action and defamatory action.
The Network urges the public to be circumspect and to respect lawful due process for all involved. We wish to remind the public of the dangers and abuses inherent in the leaking of reports in ongoing investigations by state agencies as was highlighted by the Khampepe Commission of Inquiry into the now defunct Scorpions.
The Khampepe Commission, on the basis of the myriad of public complaints relating to the leaking of information by the then Directorate of Special Operations (DSO), condemned such practices and unlawful action "that causes prejudice or embarrassment to those who are the subject matter of the investigations." The Commission found evidence of abuse in the manner in which the DSO publicizes its work to the media "FBI style" meaning "that the DSO conducts its operations as though it were a law unto itself." It found such "conduct to be out of kilter with our constitution, reprehensible, unprofessional and corroding the public's confidence in the law enforcement agencies."
In Advocate Jiba's case, the NPA has continued this type of unlawful pattern of abuse and political machinations by the then Scorpions. We are alarmed that the NPA has flagrantly flouted the obligation to scrupulously observe the principles of fairness.
We note further that the South African Police Services (SAPS) has emphatically denied that a summons was issued for Adv. Jiba because an investigation by the police is ongoing and not yet complete. The SAPS further denied that a decision has been taken whether or not to prosecute in the matter, and further stated that the investigation is not yet completed. In this regard, we note that the NPA acted with unseemly alacrity and flouted protocol when it prematurely sought a summons and ignored the ongoing investigation that the SAPS
Even more egregious, the NPA rushed to publicize false and malicious reports in the news media that Adv. Jiba was either in hiding or had absconded to evade service of court process. The evils inherent in such malicious and mischievous reports are that once the horse has bolted, it is meaningless to close the barn door. The damage done to persons by such leaks is irreversible. Adv. Jiba is subjected to the torture of public condemnation and the NPA has reduced the very prosecution process to a sham and a farce in which the accused is already portrayed as a fugitive before she is even served with the summons.
The Network condemns this racist treatment and urges the public to contrast the treatment of Adv. Jiba with that of Adv. Gerrie Nel. In Adv. Nel's case, the DA and other racists decried Adv. Nel's arrest as a serious threat to prosecutorial independence and the rule of law and yet in Adv. Jiba's case, there was no observance of procedural due process protection, no respect for her right to privacy and the presumption of innocence applicable to every criminal prosecution. Predictably white DA racists do not believe that Advocate Jiba, an African woman, is entitled to any constitutionally guaranteed rights.
The Network condemns in the strongest possible terms the NPA's despicable flouting of Section 23 of our Constitution which states that "Everyone has the right to fair labour practices." The NPA's unlawful actions against Adv. Jiba, the unnecessary firestorm of controversy and attendant adverse publicity may very well constitute constructive dismissal of Jiba.
After all, the mere filing of a criminal charge can have a devastating effect upon an individual's life, including potential pretrial incarceration, loss of employment, embarrassment and loss of reputation, the financial cost of a criminal defense, and the emotional stress and anxiety incident to awaiting a final disposition of the charges.
Such consequences may well have a permanent effect that is not cured even by an acquittal at trial. In this regard it is silly, mischievous and downright ludicrous for the NPA to provoke a confrontation with Jiba while investigation by SAPS is not yet completed and then claim that Adv. Jiba has gone "AWOL." The Network urges the NPA to act in strict observance of the Public Service Act and our Constitution.
We urge the Democratic Alliance and other conspirators to respect the rule of law and desist from their unwarranted attacks on members of the SAPS. Adv. Glynnis Breytenbach, who served for many years as a DA mole in the NPA, has lost two court cases. First, she was suspended from her duties on 30 April 2012 and she challenged her suspension in Court on three main grounds. First, in an ad hominem attack, she claimed Adv. Jiba (then Acting NDPP) had suspended her for an ulterior purpose that being to stop her from prosecuting Lieutenant-General Mdluli on charges of fraud and corruption.
Secondly she claimed there was no justification for a suspension pending the disciplinary enquiry and; finally that the procedure by which she was suspended was unfair. This application was dismissed by Justice Cele for want of jurisdiction. Breytenbach v National Director of Public Prosecutions (J1397/12) [2012] ZALCJHB 68 (18 July 2012).
Contrary to Breytenbach's wild delusions of black conspiracy against whites, the court noted that the genesis of the matter was a 31 October 2011 complaint by attorney Ronald Mendelow, acting on behalf of his client Imperial Crown Trading 289 (Pty) Limited (ICT), against Adv. Breytenbach with the NDPP. ICT complained that Breytenbach was biased and not even-handed in her handling of the complaints against ICT and Kumba.
Adv. Breytenbach allowed her close friend Advocate Michael Hellens to influence her prosecutorial discretion in the ICT case. Court records indicate that Breytenbach "invited him and his attorney to her office to explain aspects of the civil dispute to her and Captain Van Rensburg. When Lt-Colonel Van Wyk later took over as investigating officer, she again invited him and his attorney to her office to give her the same explanation. She did so believing that the civil dispute had generated a large body of evidence which had in turn given rise to very complex issues of fact and law."
In the course of investigating the ICT case, Adv. Breytenbach and Lt-Colonel Van Wyk applied for a search warrant in terms of Section 213, to search certain premises including those of ICT. Once again, "they asked for Adv. Hellens' assistance with the preparation of the application for the search warrant. The search warrant was issued by a Magistrate in Kimberley on 26 July 2011 and was executed by SAPS." The Court also noted Breytenbach's flagrant attempt to mislead the Kimberley Magistrates Court.
It stated: "[15] [Breytenbach] also participated in the litigation in Kimberley including filing affidavits, taking legal advice from Adv. Hellens on the proper cause of action to take". At that time, Lt-Colonel Van Wyk had deposed to an affidavit in the Kimberley High Court dispelling the allegation by ICT that Adv. Hellens was conducting and directing the investigation. Lt-Colonel Van Wyk had said that Adv. Hellens was not involved and the aforesaid application for a search and seizure warrant was prepared by Adv. Breytenbach assisted by the Applicant. Adv. Hellens was not mentioned.
At that time both [Breytenbach] and Lt-Colonel Van Wyk downplayed the extent of Adv. Hellens involvement in the criminal investigation. According to the respondent, it was also alleged that during the search and seizure, Adv. Hellens, as Sishen/Kumba counsel, was granted unfettered and unhindered access to the premises and the seized documents." In other words Adv. Glynnis Breytenbach knowingly allowed the filing of a perjured affidavit in which she falsely denied that her close friend Adv. Hellens and herself withheld material facts from the Court.
According to the Court, on 2 December 2011, Mr Wasserman, an Acting Senior Manager in the NPA's Integrity Management Unit, was appointed to head a team to conduct a preliminary investigation against Adv. Breytenbach. In January 2012, Mr Wasserman's investigation team said it had found that a prima facie case of misconduct by Breytenbach existed. On the strength of the preliminary findings by Mr Wasserman's team, the NPA decided to initiate the process for the possible suspension and disciplinary action against Breytenbach.
The matters of Adv. Breytenbach's misconduct have never been fully ventilated in our courts. The Network notes with concern that none of the white liberal advocates who were quick to act on complaints against Adv.Simelane and Adv. Jiba have ever requested the General Council of the Bar (GCB) to investigate Adv. Breytenbach for her perjury and fraud perpetrated upon the Court as spelled out in the judgment.
The Network notes credible published reports that the Democratic Alliance (DA) together with the DA's parliamentary candidate Advocate Glynnis Breytenbach, were being funded by Nathan Kirsh, the director and owner of Israel's Magal Security Systems and the complainant in two linked cases that Adv. Breytenbach was involved in prosecuting. Adv. Breytenbach allegedly received a R6.3m donation from Nathan Kirsh via the FW de Klerk Foundation, towards her legal fees in the NPA matter.
The Network is fully convinced that this matter goes beyond being mere conflict of interest - it is a downright criminal act of bribery and seriously undermines public confidence in the NPA. It does not take much imagination to envision the potential for corruption and conflicts of interest when the same prosecutor vested with the tremendous power of criminal investigation and prosecution also acts at the behest of a rich Zionist who pays her bills.
There is the inherent danger of the prosecutor using information obtained in the course of an official criminal investigation to benefit Nathan Hisch who was masquerading as a private "complainant". Added to this is that a prosecutor might be tempted to decline a justified prosecution of Hisch or his cronies, to initiate an unjustified prosecution against Hisch's business competitors or adversary, or to use the threat of criminal investigation or prosecution to coerce Hisch's opponents into submission or concession.
That is quintessential corruption blithely ignored by the sanctimonious DA.
About the Higher Education Transformation Network (HETN):-
The Higher Education Transformation Network (HETN) is an independent network of alumni and graduates from various higher education and further educational institutions across South Africa committed to the process of transformation of education and training to increase equitable and meaningful access to education, skills and learning to eliminate of socio-economic disparities.
Statement issued by Mr Lucky Thekisho, Chairperson of the HETN Board, April 6 2015
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