Jiba answering affidavit pleads innocence without basis
2 December 2015
The embattled deputy National Director of Public Prosecutions (NDPP), Nomgcobo Jiba, has finally filed her answering affidavit in the DA’s review application launched in the Western Cape High Court.
The DA is seeking her immediate suspension pending the outcome of a disciplinary inquiry that the President must institute. This is for her conduct, while acting as a high-ranking official at the National Prosecuting Authority (NPA), which we contend is disgraceful and not becoming of a person holding senior prosecutorial office in our criminal justice system.
In our founding affidavit the DA submits that, given the prima facie evidence of Ms Jiba’s long list of failings and improper conduct, President Jacob Zuma, acting in accordance with section 179(1)(a) of the Constitution read with section 12(6)(a) of the NPA Act, must suspend her pending a formal inquiry into her suitability to continue as the second-in-command at the NPA.
In the face of all these adverse findings; Ms Jiba contends that she has always acted “in good faith” and that “criticism by a Court does not necessarily entail that a person should be disciplined and/or suspended.” She makes these assertions devoid of an iota of evidence to substantiate her difference of opinion with the Courts’ indictment of her conduct.
She further suggests that the Court had never made findings against her personally, but only against her office, and that she had relied on the advice of others. Not only is this a blatant attempt to deflect responsibility – an indictment of her poverty of leadership skills and integrity – but it is also disingenuous.
The Pietermaritzburg High Court and the Supreme Court of Appeal (SCA) have both repeatedly commented on Ms Jiba’s unbecoming conduct with particular reference to the Spy Tapes saga and the baseless investigation into the KZN Head of the Hawks, Johan Booysen. Presently, Ms Jiba is the subject of an Application by the General Bar Council (GCB) along with North Gauteng Director of Public Prosecutions, Sibongile Mzinyathi and disgraced Commercial Crimes head, Lawrence Mwrebi, to be struck from the Roll of Advocates as they are not fit and proper to be members of the profession.
Ms Jiba goes on to claim that she has “serious doubts about the motivations of the [General Council of the Bar] GCB for bringing its application against [her] and…it appears to be part of a political attempt to remove [her] from the NPA.” This she asserts with tenuous basis in evidence and law. In any event it would be for her to take on review presenting rational representations before a competent judge to credibly substantiate her claims of malicious prosecution.
She also asserts throughout her affidavit that for the court to order disciplinary action would be to undermine her independence and even impugn on her dignity. Contrary to the very essence of constitutionalism, Ms Jiba thus suggests that the Constitution protects her from measures of accountability. It is deeply concerning, and indeed very telling, that Ms Jiba considers constitutionally mandated oversight as a threat to her office and her personal interests.
It completely beggars belief as to why the President has not yet suspended Ms Jiba. She is second-in-command at the NPA and it is well known that she has done her utmost to undermine the former NDPP, Mxolisi Nxasana. She has also refused to co-operate with Judge Yacoob who conducted a judicial commission of inquiry into her conduct at the NPA.
It is inexplicable that, knowing all this and in the absence of such rational reasons seeking a stay of her suspension, Ms Jiba has recently been promoted from the Head of Legal Affairs within the NPA to the Head of the National Prosecuting Service (NPS). This is baffling because she will effectively have ultimate control of all prosecutions in South Africa including the prosecution of her allies like Richard Mdluli and Lawrence Mwrebi who represent the worst in our criminal justice system.
Her long history of undue political interference in high profile litigation should see her suspended pending the outcome of her inquiry, particularly as the deadline of the decision on the reinstatement of the 783 charges of corruption against President Zuma rapidly approaches.
If the President is serious about avoiding the appearance of impropriety in the discharge of justice and due process he must show leadership and suspend Ms Jiba, whose presence at the NPA will cast doubt over any high profile decision made while she has unfettered influence over the new NDPP, Adv Shaun Abrahams.
The DA has submitted that the President’s decision not to institute a probe against Jiba is inconsistent with the constitutionally entrenched independence of the NPA. Further we assert that inaction in this regard is clearly irrational and unlawful.
In a fair society envisioned by the DA, all South Africans will be equal before the law including those close to the President.
Issued by Adv Glynnis Breytenbach, Shadow Minister of Justice, DA, 2 December 2015
