Removal of Adv Jiba & Adv Mrwebi from office: Update from Parliamentary Legal Services; DCS, DoJ&CD & OCJ BRRRs

Meeting report

Briefing by Parliamentary Legal Adviser
Adv Siviwe Njikela, Senior Legal Adviser, Parliament, reminded the Committee that Adv Jiba opted to go to court to declare the decision of the President unconstitutional, invalid, and sought for it to be set aside. She also wanted to interdict the parliamentary process pending the determination of her review application (Part B) and be reinstated to her position. At the time, Parliament opted to abide by the decision of the court and decided to file an explanatory affidavit which explained the position the parliament was taking as far as the litigation was concerned. Amongst other things, the affidavit stated that Parliament should consider the provisions of Section 12 to be peremptory and that Parliament did not have a discretion not to do what it was supposed to do in terms of Section 6. The Presidency, Minister of Justice and National Director of Public Prosecution took a frontal opposition to the application. The application then went to court for arguments on 19 September 2019, and the judgement was reserved.
 
On 18 October 2019 the judgement was delivered. The court was clear on the role of Parliament in this matter, that it had to exercise oversight over the presidential powers in terms of Section 12. It confirmed the position Parliament had assumed that these were two separate processes: the President removes, and Parliament decided on the restoration. Adv Jiba conflated the two processes in her application, stating the President’s decision was subject to confirmation by Parliament. The court also agreed these were two separate processes. The decision of the President was an independent decision and was not subject to confirmation. Parliament has to find whether it has good grounds for restoration. It was on this basis that the court decided the remedy Adv Jiba sought was very competent.  The court indicated that there was a separation of powers and it could not stop a parliamentary process which was required by law.
 
Adv Jiba had an alternative remedy which is in Section 12 (c). She must come to Parliament to make a presentation because the process was to her advantage rather than to her disadvantage. She had been removed and it was only Parliament that could restore her. This was the alternative remedy she needed to exhaust. But she chose to approach the court prematurely. On that basis her application was dismissed with costs, including all the prayers she filed to the court.
 
Adv Njikela said they have heard that there might be an appeal coming. Ordinarily, interim orders are not appealable. As matters stand, there was no legal impediment that was preventing the Committee from proceeding with the consideration of the matter in terms of section 12(6). Litigants could take whatever steps they wanted to take. Parliament has agreed not to oppose the application. Even if the appeal gets filed, there has been no interdict to prevent Parliament from its processes. The Committee has to consider and decide how it wanted to proceed with the matter. The Committee could continue with the conciliatory approach it had initially adopted by inviting Adv Jiba to make representations within a certain period or choose a hard line.
 
Discussion
Mr W Horn (DA) said he did not disagree with what was being presented to the Committee. The parliamentary process has to take its place. Adv Mrwebi was removed in a fair manner, and the court has indicated that Parliament has to move in an expeditious way because it has started the process and that must be concluded now. The court found that in Part A Adv Jiba sought an interim relief. However, it was not clear if the applicant would go ahead with it. He advised that in its reconciliatory approach, Parliament has to stick to a fair and reasonable process. Adv Jiba should be given a chance to make a representation to the Committee.
 
The Chairperson stated that half of the judgement dealt with the conflation of separate powers.
 
Adv H Mohamed (ANC) commented that the parliamentary process was the last one. The matter at hand was whether to give Adv Jiba another chance but the Committee needed to be very careful. Parliament does not have to consider only the individual concerned but civil society, government and citizens of SA as well. The processes are clear. This matter has been coming a long way, and it was fair that the Parliament must be given reasonable time to complete its process. The court did not indicate what Parliament should do. Parliament has been fair to Adv Jiba. There was consideration, but the other party did not respond when she was given a chance to do so. Concerning the appeal, he said Parliament should get clarity and engage with the party concerned to confirm the decision it was taking.

 
Ms J Mofokeng (ANC) noted that Parliament gave Adv Jiba enough time to respond, but she chose to go to the court to interdict it. If she had thought about it, she could have made a submission even though she intended to go to court. That approach indicated she did not care about Parliament. There was no interdict that prevents Parliament from continuing with its processes. If is given more time, then there will be more stunts. This matter now was no longer about her, but it was about the people of South Africa.
 
Adv S Swart (ACDP) said it appeared Adv Jiba wanted to be reinstated in order to be able to make a legal representation to the Committee, but the court did not consider that. The court, instead, emphasised that Parliament was exercising oversight over the presidency. Part B of this matter could be another process of taking this to a review. He was not 100% sure whether Adv Jiba’s statement indicated she wanted to be reinstated so as to get funds for legal representation to appear before the Committee. He further stressed there was nothing in law that prevented the Committee from proceeding with its work.
 
Ms W Niewhoudt-Druchen (ANC) wanted to understand the appeal part. She asked for clarity on what would happen to the parliamentary process if it decides to proceed and Adv Jiba continues with her appeal process at the same time.
 
Adv Njikela welcomed the comments from the Committee, but indicated that legally he could not tell the Committee what it should do. There were no legal impediments for the Committee not to proceed with its processes but there might be an appeal as has been indicated.  The ordinary principle in litigation is that, if there is an order and then somebody appeals it, that order gets suspended, pending the appeal. But the difference in this particular matter was that she did not have an order in her favour. In that sense, nothing was preventing Parliament from going on. If she had obtained an interdict, and Parliament was appealing that interdict, the order would be suspended. But that was not the case because there was no court order which had directed Parliament not to proceed. That is why Parliament wrote to Adv Jiba to inform her it was not going to stop its process unless it got an interdict. But later on, Parliament decided to give her an opportunity to ventilate Part A of her case which now has been fully ventilated and was dismissed.
 
Adv Njikela stated there were considerations the Committee had to take into account. If Adv Jiba appeals and succeeds, Parliament needed to think of the implications of that success for the processes that it could have undertaken. What was being contested in this case was the decision of the President to remove her from office, not the decision of Parliament. The issue was that of the President and the Mokgoro Enquiry. But Parliament has been asked to wait for that dispute to be finalised. There was a big difference between these two, but the Committee would be given an opportunity to consider all of these things. On whether Adv Jiba should be given enough time, there was no particular view on the matter. The Committee can either adopt a hard line approach because it gave Adv Jiba a chance to respond, and she chose not to do so, or continue with a conciliatory approach where the Committee would let her finalise Part A and give her an additional number of days to make a representation, failing which the Committee would continue with its process. But Part A has gone in the manner it has. Additional days were not going to make a difference, but would enhance the process Parliament has to undertake.
 
He further indicated there was also a matter of an alternative remedy. The court indicated to Adv Jiba she had approached it prematurely but she had an alternative remedy because all she needed was to make a representation to Parliament. Adv Jiba went to court without exhausting the alternative remedy. That was why she did not qualify for an interdict because one of the hurdles you have to overcome in order to get an interdict is to prove you do not have an alternative remedy. So, if the Committee wanted to look at fairness, and she wanted to consider the alternative remedy, that did not mean by implication she would be given more time by the Committee to make the representation. If Adv Jiba’s appeal succeeded, the decision of the President would be set aside and interdicted, and she would be reinstated because that was the only part that was an issue now until Part B of the application was finalised. Part B would still continue and be expedited by the applicant.
 
The Chairperson said the matter needed to be concluded before the end of this term. If she was being given an extra 10 days, the Committee would be avoiding litigation and costs that go with it.
 
Adv Mohamed believed that Adv Jiba would not litigate whether she has been given 10 days or not. The main test here is the confidence of Parliament in the process even though it would be cautious of litigation.
 
Adv Swart indicated that in the correspondence that would be sent to Adv Jiba it should be stated she has no legal obligation to respond but this was a fair process adopted by Parliament.
 
Mr Horn further suggested it should be indicated she was being afforded a final opportunity in the interest of fairness, but it was not a negotiation.
 
Ms Mofokeng proposed that seven days for Adv Jiba to respond was a fair time and a last chance for her. No other opportunity would be given to her.
 
The Chairperson indicated Adv Jiba would be given seven calendar  days to respond to the letter. He added that the matter should be finalised before 4 December 2019.
 
Adoption of BRR Reports
 
Office of the Chief Justice Report (OCJ)
 
The Chairperson took the Committee through the document, page by page and invited Members to make comments and corrections.
 
Ms Mofokeng moved for the adoption of the report.
 
Adv Mohamed seconded the motion.
 
The DA and ACDP reserved their positions.
 
The report was adopted with minor amendments.
 
Department of Justice and Constitutional Development Report
 
The Chairperson took the Committee through the document, page by page and invited Members to make comments and corrections.
 
Ms Niewhoudt-Druchen moved for the adoption of the report.
 
Adv Mohamed seconded the motion.
The DA and ACDP reserved their positions.
 
The report was adopted with minor amendments.
 
Department of Correctional Services Report
 
The Chairperson took the Committee through the document, page by page and invited Members to make comments and corrections.
 
Ms Mofokeng proposed for the adoption of the report.
 
Ms Niewhoudt-Druchen seconded the proposition.
 
The DA and ACDP reserved their positions.
 
The report was adopted with minor amendments.
 
The meeting was adjourned.