Adv Jiba’s court application to interdict Parliament: discussion and way forward

Meeting report

The Chairperson welcomed everyone to the briefing with the parliamentary Legal Advisor on Adv Nomgcobo Jiba’s court application to interdict Parliament. She reminded Members that during a joint meeting with the Portfolio Committee on Justice, it was agreed that the Committee would receive legal advice on how to take the matter forward.

Briefing by Parliamentary Legal Advisor
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, highlighted that a decision was taken during a previous meeting that the Committee would invite Advocates Jiba and Mrwebi to make representations in respect of the decision the Committee was expected to take in terms of Section 12 of the National Prosecuting Authority (NPA) Act. Letters were sent to both to indicate they had the opportunity to make representations within 10 working days. Adv Mrwebi, in response, made substantive submissions on why he believed he should be re-instated. On the other hand, Adv Jiba had not made any submissions. Adv Jiba had opted to approach the courts to apply for a review of the decision taken by the President to remove her and for a review of the findings of the Mokgoro Commission of Inquiry in as far as they relate to her. This application had brought a different turn to events. A letter was received from her attorneys advising Parliament that she had decided to approach the courts. Therefore, in their view, the application invoked the sub judice rule as the matters involving the President and the Mokgoro inquiry were still pending. The suggestion was Parliament must halt its processes relating to this matter.

Parliament’s legal services had subsequently prepared a draft response to Adv Jiba’s letter. A position was taken to say Parliament does not agree that the sub judice rule could be invoked as there was no pending litigation when Parliament began instituting its processes. Secondly, the process was statutory in nature hence it was not up to Parliament to decide not to comply with the statutory provisions. Parliament is actually obliged to comply with the statutory provisions within the prescribed timeframe or within a reasonable period. Parliament’s legal services further submitted that there were two separate decisions being dealt with. The decision that was taken by the President to remove her, which was effective from 26 April 2019, was separate from that which Parliament should make as to whether to reinstate her or not. Therefore, the decisions were separately reviewable. Adv Jiba and her legal representatives had enough time to review the decisions while Parliament initiates its own processes. This had triggered another set of events which had culminated yesterday, when Parliament was served with a court application by Adv Jiba wherein an urgent application had been lodged before the Western Cape High Court for an interdict to stop the parliamentary process relating to her matter. This had come closer to what legal services thought Adv Jiba and Mrwebi should have done initially. Parliament has not discretion, unless there is a matter before the courts.

Adv Njikela said Parliament’s legal services was now required to submit a response to Adv Jiba’s court application by 11am today so that the hearing could be held the following day. Parliament was not going to oppose Adv Jiba's urgent interdict application tomorrow but would submit a notice to abide by the court's decision accompanied by an explanatory affidavit on its statutory obligation to finalise the matter. The outlined processes related to Adv Jiba specifically, not Adv Mrwebi who had made submissions to Parliament. The latter had also sent a letter this morning, where in essence he was saying he had now become aware that Adv Jiba was approaching the courts to review the President’s decision as well as the findings of the Mokgoro inquiry. In Adv Mrwebi’s understanding, the issues being raised by Adv Jiba were similar to those he was raising with Parliament and therefore, in view of the similarities between these two cases, he requested that Parliament not proceed with its consideration of his reinstatement as well.

Adv Njikela said although Adv Mrwebi’s matter was not before the courts, he recommended that the Committee adopt the same position it had taken on the Jiba case. There was no obligation on the part of the Committee to stay its processes in as far as the Mrwebi matter was concerned. The deference to court only applies where there are pending matters. He added that it would make very little sense to start a process which could be stopped the next day.

Discussion
The Chairperson appreciated the briefing and invited clarity-seeking questions from Members. She asked for a more in-depth overview on issues being raised by Adv Jiba in her court application. 

Adv Njikela replied that Jiba’s application was quite extensive and in two parts. She seeks an interim order to review and set aside the decision of the President to remove her as well as the findings of the Mokgoro inquiry. Secondly, she wants to be reinstated pending the review of the aforesaid decision. She also wants to stay the parliamentary process of considering her removal. The second part to her application argues that Section 12 of the NPA Act, which is a trigger for the parliamentary process, is unconstitutional as it prescribes that a simple majority is required for the removal of the deputy national director of public prosecutions (NDPP). In her view, a simple majority does not provide sufficient protection for an independent office bearer such as the NDPP. Adv Jiba felt Parliament should only be able to remove an NDPP by a two thirds majority as it was the case with the Public Protector. She also wanted to set aside the entire Mokgoro inquiry report. 

Mr G Michalakis (DA, Free State) noted that the application filed by Adv Jiba cites the ‘Speaker of Parliament’ as a second respondent. However, the ‘Speaker of Parliament’ is something that does not exist. There is the Speaker of the National Assembly as well as Chairperson of the NCOP. Also, if Adv Jiba applies for an interdict addressed to the Speaker of the National Assembly, in an event that it is granted, the interdict would not be binding to the NCOP as a separate House.

Adv Njikela replied that it was a common mistake by many litigants against Parliament to cite the ‘Speaker of Parliament. Also, the respondents are entitled to raise the issue of non-joinder if one House is cited, not both. Legal services was dealing with this in its answering papers. He suspected the applicants would not challenge this but would simply amend their papers and cite the correct parties. This citation error does not necessarily dispose of the litigation that they had initiated.

Mr T Dodovu (ANC, North West) said the Committee’s processes must be expedited as soon as the court rules on the Jiba matter. These processes had to be brought to finality as the NPA is an institution of national importance and it is at the heart of fighting crime and corruption. He proposed the two matters be held in abeyance up until court processes are complete.

The Chairperson said the Committee was mindful of its statutory obligations and had tried to meet the 30-day prescribed timeframe. However, given the developments as outlined, it would be prudent for the Committee to wait for the outcome in the courts the following day, and then make efforts to bring the matters to finality.

Mr Michalakis pointed out that Adv Jiba was interdicting Parliament on a process the institution was required to go through according to the law. He disagreed with the Chairperson on the basis that Parliament ought to follow the law and stick to prescribed timeframes. The 30-day timeframe had already passed and now, all of a sudden, an interdict had been conveniently sent to the courts around the time the Committee was to deliberate on the matter. It would be absolutely futile to think that Parliament should be stopped in its processes simply on that basis. He believed Parliament should fulfil its statutory obligations.

Mr Dodovu said whatever the Committee does must be legally sound. Whether the two were ‘playing games’ was neither here nor there. If there is an interdict, as Members were being made to understand, the Committee would have to follow due process by respecting the application. He suggested the Committee convene as soon as the courts decide on the matter.
 
The Chairperson agreed and said the Committee would reconvene as soon as there is an outcome from the courts. He thanked everyone for the engagements.

The meeting was adjourned.