ATC191127: Report of the Portfolio Committee on Justice and Correctional Services on whether or not to restore Advocate Nomgcobo Jiba and Advocate Lawrence Sithembiso Mrwebi to their positions of Deputy National Director of Public Prosecutions and Special Director of Public Prosecutions at the National Prosecuting Authority, in terms of sections 12(6) of the National Prosecuting Authority Act 32 of 1998, dated 27 November 2019

Justice and Correctional Services

[The following report replaces the Report of the Portfolio Committee on Justice and Correctional Services, which was published on page 10 of the Announcements, Tablings and Committee Reports dated 27 November 2019]

 

Report of the Portfolio Committee on Justice and Correctional Services on whether or not to restore Advocate Nomgcobo Jiba and Advocate Lawrence Sithembiso Mrwebi to their positions of Deputy National Director of Public Prosecutions and Special Director of Public Prosecutions at the National Prosecuting Authority, in terms of sections 12(6) of the National Prosecuting Authority Act 32 of 1998, dated 27 November 2019

 

The Portfolio Committee on Justice and Correctional Services, having considered the President’s decision to remove Advocate Nomgcobo Jiba, Deputy National Director of Public Prosecutions, and Advocate Lawrence Sithembiso Mrwebi, Special Director of Public Prosecutions, from their respective positions at the National Prosecuting Authority in terms of sections 12(6) of the National Prosecuting Authority Act 32 of 1998, reports as follows:

 

  1. Introduction

 

  1. In a letter to the Speaker of the National Assembly, dated 25 June 2019, the President communicated his decision to remove Adv. Nomgcobo Jiba and Adv. Lawrence Sithembiso Mrwebi from their positions at the National Prosecuting Authority (NPA) of Deputy National Director of Public Prosecutions (DNDPP) and Special Director of Public Prosecutions (SDPP), respectively, in terms of section 12(6)(b) of the National Prosecuting Authority Act 32 of 1998 (“the Act”).

 

  1. Section 12(6)(b) of the Act required the President to communicate his decision to remove Adv. Jiba and Adv. Mrwebi from their positions at the NPA, in a message to Parliament within 14 days after such removal if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session. The President had informed Adv. Jiba and Adv. Mrwebi of his decision to remove them from office with effect from 26 April 2019 in a letter, dated 25 April 2019. At the time, however, Parliament was dissolved ahead of the 2019 General Elections.

 

  1. Section 12(6)(c) of the Act provides that Parliament shall, within 30 days after the communication of the message has been tabled in Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not restoration to office at the NPA is recommended.

 

  1. On 3 July 2019, the President’s message containing his decision and accompanying documentation was referred to the Committee for consideration and report. The accompanying letter states that the basis for the decision is both reports and submissions, read together.

 

  1. The following documents accompanied the message:
    • The decision to remove Advocate Nomgcobo Jiba and Advocate Lawrence Sithembiso Mrwebi from their position in the NPA, which includes the reasons therefor (two separate letters to both Advocate Jiba and Advocate Mrwebi dated, 25 April 2019);
    • The unabridged version of the Report of the Panel;
    • The abridged version of the Report of the Panel (the abridged version was, as described by the Panel, compiled to make a more easily ‘consumable’ version); and
    • The submissions made by both advocates in response to the Report. Advocate Jiba had annexures to her submission (please refer to Annexure A attached).”

 

 

  1. Relevant empowering provisions

 

  1. Section 9 of the Act sets out the qualifications for appointment to the position of National Director of Public Prosecutions, Deputy National Director of Public Prosecutions or Director of Public Prosecutions at the NPA. In addition to possessing the requisite legal qualifications to practice in all courts in the Republic, these must be fit and proper person(s), with due regard to their experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned.

 

  1. The grounds for and process by which a National Director or Deputy National Director may be removed from office are provided for in sections 12(5), (6) and (7) of the Act.

 

  1. Section 14(3) of the Act provides that the sections of the Act providing for the vacation of office and discharge of a National Director (and Deputy National Director) shall apply, with the necessary changes, with regard to the vacation of office and discharge of a Director.

 

  1. In terms of section 12(6)(a) of the Act there are four permissible grounds for removing a National Director, Deputy National Director and Special Director from office: Misconduct; continued ill-health; incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

 

  1. Section 12(5) of the Act provides that “(5) The National Director or a Deputy National Director shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8).”

 

  1. Section 12(6)(a) and (b) of the Act provides for the removal of the National Director or a Deputy National Director from his or her office:

“(a) The President may provisionally suspend the National Director or a Deputy National Director from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office-

(i) for misconduct;

(ii) on account of continued ill-health;

(iii) on account of incapacity to carry out his or her duties of office efficiently; or

(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

 

(b) The removal of the National Director or a Deputy National Director, the reason therefor and the representations of the National Director or Deputy National Director (if any) shall be communicated by message to Parliament within 14 days after such removal if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.”

 

  1. Parliament’s role in this process is provided for in section 12(6)(c) and (d) of the Act, namely:
    •  

 

(d) The President shall restore the National Director or Deputy National Director to his or her office if Parliament so resolves.”

 

  1. Overview of the removal process

 

  1. Establishment of Enquiry

 

  1. Adv. Jiba and Adv. Mrwebi were provisionally suspended from office at the NPA by the President on 26 October 2018, in terms of section 12(6)(a) of the Act, pending the completion of an enquiry into their fitness and propriety to hold office. Notably -
  2. Adv. Jiba served as a Deputy National Director of Public Prosecutions (DNDPP) from 22 December 2010. In December 2011, she was appointed as the Acting National Director of Public Prosecutions and held the position until 4 August 2013, when Mr Mxolisi Nxasana was appointed as National Director of Public Prosecutions, at which point she returned to her position as DNDPP.
  3. Adv. Mrwebi was appointed as a Special Director of Public Prosecutions (SDPP) and head of the Specialised Commercial Crime Unit (SCCU) on 25 November 2011.

 

  1. Following their provisional suspension, the President established an Enquiry as required in terms of section 12(6)(a) of the Act to determine the fitness and propriety of Adv. Jiba and Adv. Mrwebi to hold office in their respective capacities.  

 

  1. Terms of reference

 

  1. The Enquiry’s terms of reference were gazetted on 9 November 2018 in Government Notice 699 of 2018 (Government Gazette 42029).

 

  1. The President appointed Justice Yvonne Mokgoro (retired) as chairperson, to conduct the Enquiry, assisted by Kgomotso Moroka SC and Thenjiwe Vilakazi. (Terms of Reference: paragraph 1)

 

  1. The scope of Enquiry was to look into the fitness and propriety of both Adv. Jiba and Adv. Mrwebi to hold office in their respective capacities. (Terms of Reference: paragraphs 3 and 4)

 

  1. In relation to Adv. Jiba, and at the Panel’s discretion, the Enquiry was to consider evidence arising from the cases referred to in the Terms of Reference, namely:
  2. Jiba and Another v General Council of the Bar of South Africa and Another Mrwebi v General Council of the Bar of South Africa [2018] 3 All SA 622 (SCA).
  3. Freedom under Law v National Director of Public Prosecutions & Others 2018 (1) SACR 436 (GP).
  4. General Council of the Bar of South Africa v Jiba & Others 2017 (2) SA 122 (GP).
  5. Freedom Under Law v National Director of Public Prosecutions and Others 2014 (1) SA 254 (GNP).
  6. National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA).
  7. Zuma v Democratic Alliance [2014] 4 All SA 35 (SCA).
  8. Booysen v Acting National Director of Public Prosecutions and Others [2014] 2 ALL SA 319 (KZD).

 

Due regard was to be had to all other relevant information, which included matters relating to Richard Mdluli and Johan Wessel Booysen. (Terms of Reference: paragraph 3.1.)

 

  1. In relation to Adv. Mrwebi, and at the Panel’s discretion, the Enquiry was to consider evidence arising from the cases referred to in the Terms of Reference as they related, directly or indirectly, to his conduct, namely:
  2. Jiba and Another v General Council of the Bar of South Africa and Another Mrwebi v General Council of the Bar of South Africa [2018] 3 All SA 622 (SCA).
  3. Freedom under Law v National Director of Public Prosecutions & Others 2018 (1) SACR 436 (GP).
  4. General Council of the Bar of South Africa v Jiba & Others 2017 (2) SA 122 (GP).
  5. Freedom Under Law v National Director of Public Prosecutions and Others [2014] (1) SA 254 (GNP).
  6. National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA).

 

Due regard was to be had to all other relevant information, which included matters relating to Richard Mdluli. (Terms of Reference: paragraph 4.1)

 

  1. The Enquiry was also required to consider the manner in which Adv. Jiba and Adv. Mrwebi had fulfilled their responsibilities as DNDPP and SDPP, respectively, which included considering whether:
  • They complied with the prescripts of the Constitution, the Act, prosecuting policy and policy directives, and any other relevant laws, in their positions as senior leaders in the NPA and are fit and proper to hold the position and be a member of the prosecutorial service;
  • The properly exercised their discretion in the institution, conducting and discontinuation of criminal proceedings;
  • They duly respected court processes and proceedings before the Courts as senior members of the NPA;
  • They exercised their powers and performed their duties and functions in accordance with prosecution policy and policy directives as determined under section 21 of the Act;
  • They acted without fear, favour or prejudice;
  • They displayed the requisite competence and capacity required to fulfil their duties; and
  • They, in any way, brought the NPA into disrepute by virtue of their actions or omissions. (Terms of Reference: paragraphs 3 and 4)

 

  1. The Enquiry was required to complete its mandate and furnish its report, together with all supporting documentation and recommendations, to the President by 9 March 2019 to allow him to make his decision before the expiry of the six-month time limit for the provisional suspension, namely 25 April 2019. However, the Enquiry Report notes that with indulgence from the Presidency, the Report was in fact submitted on 31 March 2019.

 

  1. Among the powers delegated to the Chairperson in the Terms of Reference were the powers to determine the Rules by which it would be governed. According to the Report, fairness, particularly to the parties, and reasonableness in the execution of the process were the two basic guiding principles throughout. Notably, the rules of procedure were drafted in the context of an enquiry, rather than a commission, disciplinary process or criminal trial. The procedures adopted were, therefore, inquisitorial as opposed to accusatorial.

 

  1. The Rules of Procedure, which the Enquiry adopted, were agreed to by the Evidence Leaders and the legal representatives of the concerned parties at a meeting held on 22 November 2018. This included agreement on the status of documents which were to be admitted as evidence.

 

  1. Findings and recommendations of the Enquiry

 

  1. The Enquiry found that, in view of the totality of evidence and in light of the evaluation of that evidence, both Adv. Jiba and Adv. Mrwebi were not fit and proper to hold their respective offices.

 

  1. The Enquiry, therefore, recommended that Adv. Jiba and Adv. Mrwebi be removed from office.

 

  1. President’s decision

 

  1. In letters dated 4 April 2019, the President shared the Enquiry Report with Adv. Jiba and Adv. Mrwebi, respectively, and invited them to make representations regarding the findings and recommendations contained in the Enquiry Report, which they did.

 

  1. On 25 April 2019, having regard for the work of the Enquiry, and after receiving further representations from Adv. Jiba and Adv. Mrwebi in respect of the Report, the President decided to remove both Adv. Jiba and Adv. Mrwebi from office at the NPA in terms of section 12(6)(a) of the Act, with effect from 26 April 2019.

 

  1. The President wrote to Adv. Jiba and Adv. Mrwebi on 25 April 2019 to inform them that he had decided to accept the recommendations of the Enquiry Report. The correspondence acknowledges receipt of their submissions in response to his invitation to them to give reasons on why he should not implement the recommendations of the Enquiry Report, as well as documentation filed during the Enquiry, which includes their submissions made to the Enquiry prior to the panellists compiling the Report. He states that he took the Unabridged and Abridged Reports and all their respective submissions into account in making his decision.

 

  1. In relation to Adv. Jiba, the President states that the Enquiry Report deals with the grounds upon which he has based his decision and some of the key reasons are:

“…

  1. That I have come to the conclusion that, contrary to your assertions, everything was done to ensure the Enquiry was held in a fair manner, which included involving your legal representatives in agreeing to the rules of procedure and admissibility of evidence. I have further concluded from reading the Report, that the Panel dealt extensively with all the evidence that was put before it in a fair and methodical manner.
  2. That the findings made against you, based on the evidence before the Panel, are of a very serious nature. Your submissions do not offer any response or reason not to accept the Panel’s conclusion on the following matters:
    1. the Panel found you lied to me. The Panel made this finding after noting in your submissions of 10 August 2018, you indicated that you appointed prosecutors from outside KZN, in the Booysen matter, on request of the Acting DPP of KZN. However, in your statement under oath before the Panel you said this was not the case.
    2. the Panel concluded that you acted under external pressure in making decisions on charges against General Booysen on the basis of what was indicated to you by IPID officials.
    3. the Panel determined that you failed to review or consider the representations made to review the decision by Advocate Mrwebi to withdraw charges against Mr Mdluli.
    4. the Panel found that you failed to follow legal prescripts in your decisions.
    5. the Panel found that you brought the NPA into disrepute.
    6. the Panel concluded that you lacked the necessary conscientiousness and independence required of your position.
  3. Your submissions assert that section 42 of the NPA Act precludes your removal through the enquiry process. However, I am advised that this section immunises prosecutors from being held personally liable for damages that may result from the decisions they take in the course of their work. It cannot shield a DNDPP from an enquiry about their conduct, competence or fitness to hold such a position. Section 12(6) is a unique process separate from ordinary labour disciplinary processes created by the NPA Act to protect the independence of the NPA.
  4. Your request to be appointed in a senior position in the Public Service cannot be acceded to because of the findings of dishonesty made against you in the Enquiry Report. These findings would preclude your appointment to such position as these are qualities that are required of all senior public servants”.

 

  1. In relation to Adv. Mrwebi, the President states that the Enquiry Report deals with the grounds upon which he has based his decision and some of the key reasons are:
    1. That I have come to the conclusion that, contrary to your assertions, everything was done to ensure that the Enquiry was held in a fair manner, which included involving your legal representatives in agreeing to the rules of procedure and admissibility of evidence. I have further concluded from reading the Report that the Panel dealt extensively with all the evidence that was put before it in a fair and methodical manner.
    2. That the findings made against you, based on the evidence before the Panel, are of a very serious nature. Your submissions however do not offer any response or reason not to accept the Panel’s conclusion on the following matters:
      1. The Panel found that there were contradictions in your testimony, which led the Panel to conclude that you lied about the date on which you prepared the consultative note dealing with the withdrawal of charges against Mr Mdluli.
      2. The Panel concluded that you were wrong in law about the Inspector General of Intelligence’s mandate.
      3. The Panel concluded that you accepted representations from members of the Crime Intelligence Unit before your appointment to the relevant position and wrongly factored them into your decision;
      4. The Panel found that you lied in the Ledwaba trial under oath.
    3. The Panel noted that you were dishonest before the Enquiry itself. Such conduct cannot be countenanced for a person in your position.
    4. Your request that you be given the opportunity to retire, in light of your age, cannot be acceded to, because of the seriousness of the findings against you.”

 

  1. The President’s letter informs Adv. Jiba and Adv. Mrwebi that their removal from their positions of DNDPP and SDPP, respectively, is effective immediately, as of 26 April 2019. Further, while the Enquiry Report suggests that the removal must await confirmation by Parliament, the President is of the view that section 12(6)(b) of the NPA Act makes it plain that Parliament is not asked to confirm any decision he makes but to confirm whether after removal, they ought to be restored to their respective positions.

 

 

  1. Committee’s process

 

  1. On 10 July 2019, at a joint meeting the Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice, the Committees received a briefing from the parliamentary Legal Advisors on the legal procedure to follow in considering whether or not to restore Adv. Jiba and Adv. Mrwebi to their positions in the NPA. The Committees requested additional legal advice on whether the National Assembly and the National Council of Provinces may hold joint meetings on the matter in terms the parliamentary Rules.

 

  1. On 19 July 2019, at a further joint meeting of the Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice, the Committees discussed the procedure to be followed when considering the matter of whether to restore Adv. Jiba and Adv. Mrwebi to office. The Committees decided against considering the matters jointly. However, it was agreed that they would write separately to Adv. Jiba and Adv. Mrwebi inviting them to submit written representations to each Committee.

 

  1. Subsequently, the Committee wrote to Adv. Jiba and Adv. Mrwebi, dated 24 July 2019, informing them that it would be initiating a process to consider the matter of whether or not to recommend their restoration to office.

 

  1. As was agreed, the Committee also invited both to make any additional/further written representations for consideration and to provide any available documentary or other evidence that may be relied on for the representations. The Committee’s deadline for this was 8 August 2019.

 

  1. The Committee’s second term programme reflected that the agenda for the planned meetings of 20, 21 and 27 August 2019 was deliberations on the restoration of Adv. Jiba and Adv. Mrwebi to office.

 

  1. On 26 July 2019, Adv. Mrwebi submitted his representations to the Committee, supplementing these with a further submission on 29 July 2019.

 

  1. Although Adv. Jiba received the invitation to make representations to the Committee, she submitted no representations. Instead on 8 August 2019, her attorney, Mr Zola Majavu, wrote to the Speaker to inform Parliament that, on 7 August 2019, Adv. Jiba had initiated a court application in the Western Cape High Court to review and set aside the findings of the Enquiry and the decision of the President to remove her from office ahead of the outcome of the parliamentary process.

 

  1. The letter goes on to state:

 

“3. In light thereof and with specific reference to the sub judice rule, we trust that Parliament and its relevant Committees which are currently seized with this matter would accordingly await the outcome of the review proceedings which are now pending before a Court of Law. Needless to say, in the premises, we would not make any submissions as requested in the letter under reply.

 

4. We would thus be grateful if you could acknowledge receipt hereof and confirm that Parliament and its relevant Committees would consequently await a decision of the High Court in respect of the matter currently under consideration. In our considered view, it could never be sincerely suggested that, notwithstanding the pending review, Parliament can still proceed with its consideration of this matter. Should you hold a different view, kindly indicate so in writing, to enable us to take appropriate action in order to protect our client’s rights [underlining for emphasis].” (paragraph 70

 

  1. On 14 August 2019, on the instruction of the Speaker, the State Attorney wrote to Adv. Jiba’s attorneys of record notifying them that the Speaker had given permission for service of the application to take place on the parliamentary precinct. The letter also informed her attorneys that the parliamentary process shall proceed as scheduled unless an order of court was obtained to stop the process.

 

  1. On 14 August 2019, Adv. Jiba’s attorneys replied to the letter, requesting the dates of the meetings that the Committee had scheduled to consider the matter in order to apply for an interdict at the very latest by 19 August 2019. The letter requested Parliament not to proceed with its consideration of the matter until 27 August 2019, in order to allow the urgent interdict to be heard on either 20 or 21 August 2019.

 

  1. In Part A of her notice of motion, Adv. Jiba sought interim relief pending the hearing and final determination of Part B of the application. The relief sought under Part A included that the parliamentary process in terms of section 12 be stayed, pending the outcome of the applications for orders in terms of Part B.

 

  1. The parties agreed that Part A of the application would be heard on an urgent basis. Parliament did not oppose the application and, instead chose to abide by the court’s decision. The matter was set down for hearing on 19 September 2019.

 

  1. On 19 August 2019, Adv. Mrwebi sent a letter requesting that the Committee stay its deliberations on the matter of whether or not to restore him pending the outcome of the interdict and review application by Adv. Jiba, as the issues raised in the application were substantially the same as those that he raised in his submission to the Committee.

 

  1. The Committee was briefed on these legal developments by the parliamentary legal advisors on 20 August 2019. Consequently, it resolved to stay its deliberations regarding Adv. Jiba and Adv. Mrwebi pending the outcome of the interdict and court application.

 

  1. On 18 October 2019, the Western Cape High Court in Jiba v President of The Republic of South Africa and Others (13745/2019) [2019] ZAWCHC 136 (18 October 2019) dismissed Part A of Adv. Jiba’s application, which sought, among others, an order staying the parliamentary process pending the outcome of the application for orders in terms of Part B of the application. The judgement makes a clear distinction between the President’s power to remove in terms of section 12(6)(a) of the Act and Parliament’s role to restore:

 

“[54] In coming back to the language and construction of section 12(6) of the NPA Act, it is clear from the wording and the manner in which the entire section has been constructed, that it envisages two distinct and separate procedures when an NDPP or DNDPP is removed from office. The wording in my view is clear. In terms of section 12(5) it is stated that the NDPP or SNDPP, shall not be suspended or removed from office except in accordance with the provisions of sub-sections (6), (7), and (8). In terms of subsection (6)(a) the function to suspend or remove clearly resides with the President and no one else.

 

[55] This section does not give the power to suspend or remove to any other institution or entity other than the President. The President is charged with the exclusive power to suspend or remove the NDPP or DNDPP. In this particular case, we are dealing with the exclusive power to remove by the President. In terms of subsection (b) such a removal by the President, the reasons therefore and representations by the NDPP or DNDPP (if any) shall be communicated by message to Parliament within 14 days after such a removal if Parliament is in session or, if Parliament is not in session, within 14 days after the commencement of the next ensuing session.

 

[56] The Act does not give Parliament such powers and it does not state that the removal is conditional upon the approval of Parliament. …

 

[57] It is only after the removal by the President comes into operation or takes effect that Parliament plays a role. The President’s function to remove is then completed and he plays no further role. …

 

[58] The President does not play any role in terms of the subsection in the consideration whether or not the NDPPP or DNDPP, should be restored to his or her office. The wording is clear; Parliament’s function is not to remove but to restore. Parliament plays no role in the removal of the NDPP or DNDPP. Parliament acts independently in terms of its oversight function of the President in terms of section 55(2)(b) of the Constitution, when it considers whether to restore the NDPP or DNDPP in terms of subsection 6(c) or (d).

 

  1. Following the handing down of the judgement, the Committee decided to write to Adv. Jiba to invite her once again to make written representations to the Committee. The deadline for this was 7 November 2019.

 

  1. However, on 7 November 2019, the Speaker and Chairperson of the Committee received a letter from Adv. Jiba informing the Committee that she no longer wished to participate in the process due to personal reasons:

“I wish to express my sincerest appreciation for the invite and the manner in which you have approached this matter from the beginning to date.

 

However, I have taken a decision to move on with my life. I do not seek any restoration by the Parliament back to my position in the NPA. For this reason, I will not make any representations in this regard. Thus, you do not have to consider that option.

 

The reasons for my decision are personal. …”

 

 

  1. Overview of representations by Adv. Mrwebi

 

  1. On 26 July 2019, Adv Mrwebi forwarded the following documents to the Committee for consideration:
  • Letter to the Parliamentary Portfolio Committee (Subject: Removal/ Dismissal by the President: Invite to make representations).
  • Index to presentation to Parliament.
  • Foreword to Presentation.
  • Summary of Parliamentary Presentation.
  • Presentation to Parliament in terms of section 12 of the National Prosecuting Act, 32 of 1998.
  • Possible Grounds for Review: Basis to Challenge the Enquiry in Courts or Other Relevant Fora.
  • Supporting Document: Part 1 – Annexure A: Prosecutors Reports.
  • Supporting Document: Part 2 – Annexure B: Acting in Consultation; Annexure C: GCB Affidavit; Annexure D: Extract – Prosecution Policy Section 24(3); and Annexure E: City Press Report Powers of the Inspector General of Intelligence (IGI).
  • Supporting Document: Part 3 – Annexure F: SCCU Strategy 2012 and Annexure G: Quarterly SCCU Reports 2014/15.
  • Supporting Document: Part 4 – Annexure H: 2014/15 Performance Report and Annexure I: OECD Authorisation and Reports.

 

  1. Subsequently, on 29 July 2019, Adv Mrwebi forwarded an additional document: Annexure to letter: Summary on President’s Decision.

 

  1. On 31 October 2019, the Committee received further correspondence from Adv. Mrwebi in which he requested that he be permitted to address Parliament, with the assistance of legal counsel, on a specific matter.

 

 

  1. Deliberations

 

  1. Committee’s mandate: The Committee is acutely aware that its mandate is confined to section 12(6)(c) and (d) of the Act, which is to make a recommendation to the National Assembly on whether or not to restore a National Director, Deputy National Director or, read with section 14(3) of the Act, a Director to office. The Committee understands that the Act envisages two distinct processes, namely the removal by the President and then parliamentary proceedings to consider restoration to office. It is very clear to the Committee that its mandate is not to remove but to consider restoration once the President has removed a National Director, Deputy National Director or Special Director. The Committee notes also that, in Jiba v President of the Republic of South Africa and Others (13745/2019) [2019] ZAWCHC 136 (18 October 2019), Henney J writes that: “The wording [of the Act] is clear; Parliament’s function is not to remove but to restore. Parliament plays no role in the removal of the NDPP or DNDPP. Parliament acts independently in terms of its oversight function of the President in terms of section 55(2)(b) of the Constitution., when it considers whether to restore the NDPP or DNDPP in terms of subsection 6(c) or (d).” (paragraph 58)

 

The Committee, therefore, understood that its role in considering whether or not to restore requires it to exercise oversight over the President’s decision, generally, in terms of section 55 of the Constitution and, explicitly, in terms of section 12 (6)(c) and (d) of the Act to give effect to protecting the independence of the NPA. Parliament even has the power to overturn a decision of the President to remove one or more senior directors of the NPA. Therefore, the power that Parliament is exercising is more than mere oversight but acts as a check on the powers of the President.

 

The Committee, therefore, identified the following to guide it in reaching its conclusions:

  • Had the President complied with the requirements of section 12(6)(a) and(b) of the Act?
  • Was the process leading up to the President’s decision fair to Adv. Jiba and Adv. Mrwebi?
  • Was the President’s decision to remove based on good reason?

 

  1. Letter, dated 7 November 2019, from Adv. Jiba withdrawing from the restoration process. The Committee acknowledges Adv. Jiba’s letter to the Speaker dated 7 November 2019, in which she informs that for personal reasons she no longer wished to seek restoration to Office. However, this does not remove Parliament’s statutory duty to consider whether or not to restore Adv. Jiba to her position in the NPA in terms of section 12(6).

 

  1. Unlawful conduct of President in proceeding with removal proceedings pending the ultimate outcome of the appeal of the GCB judgement. On 31 October 2019, Adv. Mrwebi wrote again to the Speaker and to the Committee asking that he be afforded the opportunity to address the Committee through his legal representative on the issue of whether the President acted in violation of an order granted by the High Court in Freedom Under Law v National Director of Public Prosecutions and Others 2018 (1) SACR 436 (GP) (“the FUL matter”), where Mothle and Tlhapi JJ (concurring) and Wright J (dissenting) in proceedings where the previous President of this country were directed to institute disciplinary proceedings against the Adv. Jiba and Adv. Mrwebi, issued the following order in paragraph 108.3: “... The President is directed to institute disciplinary enquiries against Jiba and Mrwebi into their fitness to hold office in the National Prosecuting Authority, and suspend them pending the outcome of those enquiries. It is further ordered that the implementation of this specific order be suspended pending the ultimate outcome of the appeal of the GCB judgment.”

 

On Adv. Mrwebi’s request to address Parliament in person, the Committee was disinclined to grant him such an opportunity as it had decided from the outset to conduct its deliberations on the papers and was clear that certain deadlines would be followed. Adv. Mrwebi had not raised this point in his original submission.

 

Nonetheless, the Committee did apply its mind to the contents of Adv. Mrwebi’s letter and believes that it has sufficient information before it.

 

On the merits of the issue, the Committee does not believe this to be material to its decision whether or not to restore. On appeal, in Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103; [2018] 3 All SA 622 (SCA); 2019 (1) SA 130 (SCA); 2019 (1) SACR 154 (SCA) (10 July 2018), the Supreme Court of Appeal drew a clear distinction between the test of fitness required to be an advocate and that pertaining to an official in the NPA. While the one may impact on the other, the two are distinguishable. Removal from the roll as an advocate will certainly impact on the fitness to hold office as an employee of the NPA. However, an advocate in good standing may not necessarily be fit and proper to hold office in the NPA (paragraph 96). The Court, therefore, overturned the High Court judgement to find Adv. Jiba and Adv. Mrwebi to be fit and proper to remain advocates.

 

When the General Bar Council took the Supreme Court of Appeal’s judgement on appeal, the Constitutional Court dismissed the matter on the ground that it raised a question of fact and not a constitutional question over which it had jurisdiction (General Council of the Bar of South Africa v Jiba and Others (CCT192/18) [2019] ZACC 23; 2019 (8) BCLR 919 (CC) (27 June 2019))

 

The Committee also notes that in Jiba v President of The Republic of South Africa and Others (13745/2019) [2019] ZAWCHC 136 (18 October 2019), Adv. Jiba raised this point in her replying affidavit as part of her application to Western Cape High Court for interim relief. She contended that the President could not have suspended her, nor could he have instituted an enquiry, nor could he have acted to remove her based on the recommendations of the Enquiry before 27 June 2019, when the Constitutional Court concluded that it did not have jurisdiction to hear the appeal in question.

 

However, the Western Cape High Court found that the relief that the applicant was seeking in this respect was, in fact, a declaratory order which was final in effect, and not interim relief. The contention properly forms part of Part B of the application or the final review application. Further, the relief being sought on this ground is far-reaching but was raised belatedly in the replying stage of what was initially an application for interim relief. Nor had all the information been properly put before the court. In addition, the opposing respondents had not been given a proper opportunity to answer the point. (The Committee is advised that Adv. Jiba has since withdrawn Part B of her application.)

 

Notably, as part of its introduction, the Court reflects at paragraph 3 that Adv. Jiba had raised this matter in a submission to President on whether or not she should be provisionally suspended. In paragraph 4, the Court summarises the President response to these submissions in a letter dated 24 October 2018, namely-

“(i) That he has decided on the basis of the numerous factual and legal issues raised in the various court judgments in which adverse findings were made against the Applicant and her submissions made in response thereof ought best to be dealt with by an enquiry established in terms of section 12(6) of the NPA Act;

(ii) That he has furthermore decided it is in the interests of the image and integrity of the NPA that the Applicant be suspended pending the finalisation of the enquiry which suspension, in terms of the court order in Corruption Watch NPC and Others v President of the Republic of South Africa and others; Nxasana v Corruption Watch and others (CCT 333/17; CCT 13/18) [2018] ZACC 23 (13 August 2018), will last a maximum of six (6) months;

(iii) That he has made his decisions based on the fact that regardless of the Constitutional Court’s decision in the GCB appeal of the SCA judgment on her fitness to be an advocate, the question remains whether or not she is fit to hold senior positions in the NPA. He further said that it is a question that requires an answer urgently in order for the NPA to do its work with the public’s full confidence in his leadership.

(iv) He furthermore stated that he fully appreciates that should the General Council of the Bar (GCB) succeed in its appeal this question would be moot, but believes that it would serve the Applicant and the NPA as a whole to have conclusive findings on her fitness to hold this position in a matter of months. He further stated that he has no way of knowing when the Constitutional Court might make its decision.

(iv) That he has also taken into account the serious nature of the allegations that she is unfit to be in so high an office where the work of our criminal justice system is central to the critical pressing matter of all prosecutions, especially prosecution of corruption cases and safeguard of our public purse;

(v) That she holds a senior position with influence over a large swathe of the NPA and therefore it is in the interests of the NPA’s image as a whole that he considered it.

(vi) She was further informed that the enquiry will investigate whether or not she is guilty of misconduct in the manner in which she dealt with the Mdluli case, especially in relation to her attitude towards the courts from a position as a senior leader in the NPA.

(vii) She was further informed that the enquiry will consider whether or not her actions in this case evince any form of incompetence or incapacity. And whether seen as a whole, her actions were indeed the proper exercise of a prosecutorial discretion or more indications of whether she is not being fit and proper to hold these positions. Including whether she brought the NPA into disrepute.” (at paragraph 4) (Underlining for emphasis)

 

The Enquiry also addressed itself on this point: “It is pertinent that we express some preliminary views on the GCB cases as they reveal the difference between the question determined by the Courts and that which this Enquiry must respond to Adv. Jiba’s legal representatives asked that this Enquiry accept that the fit and proper test as it relates the two remaining on the roll of advocates, was determined in the GCB SCA case, is the same test that applies to the fit and proper evaluation in terms of the NPA Act. However, that view is incorrect. Both the SCA and the High Court in the GCB matters established as much. This position was further bolstered by FUL 2018 where the Court explained the difference clearly and at great length.

 

In sum, while an official may be removed or found to be not fit and proper to remain in the NPA, they may still remain fit and proper to remain on the roll of advocates. Should an individual be struck from the roll of advocates they will, by operation of the law, also cease to be fit and proper to hold office in terms of the NPA Act.” (see paragraph. 1050-1052):

 

The Committee also believes that both Adv. Jiba and Adv. Mrwebi had ample opportunity to interdict the President or take his decision on review on this point but did not do so. It was only in August 2019, when Parliament had begun its own separate but related process that Adv. Jiba initiated court proceedings in the Western Cape High Court. As noted above, she raised this ground for the first time in her replying affidavit and not in her founding papers.

 

  1. Did the President comply with section 12(6)(a) and (b) of the Act? Sections 12(6)(a) and (b) and section 14(3) of the Act specify the process that the President must follow in reaching a decision to remove a Deputy National Director and Special Director. Having considered the relevant provisions of the Act and documentation provided to it, the Committee is of the view that the President indeed followed the prescripts of the law in reaching his decision to remove Adv. Jiba and Adv. Mrwebi from office, respectively.

 

  1. Was the process leading up to the President’s decision fair to Adv. Jiba and Adv. Mrwebi?

 

  1. In this regard the Committee notes that:
  • In August 2018, prior to their provisional suspension and the setting up of the Enquiry, the President invited Adv. Jiba and Adv. Mrwebi to make representations to him on whether or not they should be suspended. After considering their representations, the President provisionally suspended them. In his letters to Adv. Jiba and Adv. Mrwebi, the President noted that he had taken into account the serious nature of the allegations regarding their lack of fitness to be in so high an office. The President stated that the work of the criminal justice system is central to the critical and pressing matter of all prosecutions, especially prosecution of corruption cases and safeguard of the public. Furthermore, Adv. Jiba and Adv. Mrwebi held senior positions with influence over a large swathe of the NPA. It was, therefore, in the interest of the NPA’s image as a whole and of the integrity of an enquiry that must result in the clearest and most convincing conclusions about the integrity, and sound leadership of the NPA that they be provisionally suspended.
  • The Enquiry was set up with clear terms of reference, which were gazetted on 9 November 2018 in Government Notice 699 of 2018 (Government Gazette 42029).
  • Furthermore, the Enquiry was presided over by Justice Yvonne Mokgoro (retired), assisted by Kgomotso Moroka SC and Thenjiwe Vilakazi.
  • The Terms of Reference were also clear regarding the scope of Enquiry, which was to look into the fitness and propriety of both Adv. Jiba and Adv. Mrwebi to hold office in their respective capacities.
  • According to the Enquiry Report, both Adv. Jiba and Adv. Mrwebi were represented by senior legal counsel.
  • The Chairperson of the Enquiry was empowered to determine the Rules by which the Enquiry would be governed. According to the Enquiry Report, fairness, particularly to the parties, and reasonableness in the execution of the process were the two basic guiding principles throughout. Notably, the rules of procedure were drafted in the context of an enquiry, rather than a commission, disciplinary process or criminal trial. The procedures adopted were, therefore, inquisitorial as opposed to accusatorial.
  • Further, the Rules of Procedure that the Enquiry adopted were agreed to by the Evidence Leaders and the legal representatives of the concerned parties at a meeting held on 22 November 2018 – this included agreement on the status of documents which were to be admitted as evidence.
  • Both Adv. Jiba and Adv. Mrwebi were given opportunities to submit and lead evidence and to cross-examine witnesses during the Enquiry process.
  • Following the conclusion of the Enquiry process and before reaching his decision to remove Adv. Jiba and Adv. Mrwebi, the President gave them a further opportunity to make representations on the Enquiry’s findings and report. The President’s letter, dated 25 April 2019, clearly indicates that he considered all their submissions, as well as documentation filed during the Enquiry that included the submissions made to the Enquiry prior to the panellists compiling the Enquiry report. In this regard, he writes that he took the Unabridged and Abridged Reports and all their respective submissions into account in making his decision.

 

  1. Furthermore, the Committee is of the view that the documents and representations before it does not raise any reason for it to find that the process followed was unfair.

 

  1. The Committee notes too that Henney J in Jiba v The President of the RSA and Others said that: “[63] The provisions of subsection (6), (7) and (8) [of the NPA Act] are peremptory and protects the NDPP or the DNDPP from arbitrary removal by the President. The Act prescribes that proper due process be followed, which in my view, was complied with in this case. It was done in a manner to protect the independence of the NPA, if regard is to be had to the facts and circumstances of this case as set out earlier in this judgment. These facts are: The applicant throughout was invited to make representations firstly, as to whether she should be suspended based on the reasons afforded to her by the President; Secondly, whether the President should institute an enquiry, based on the reasons he once again afforded to her. She was invited to persuade the President not to institute such an enquiry; Thirdly, when the President nonetheless decided to institute the enquiry, he gave his reasons for his decision; Fourthly, after the conclusion of the enquiry, the full report and the record of the enquiry was presented to the applicant with the findings on which the report was based; Fifthly, she was once again invited to make representations to the President as to why the recommendations of the panel, which was that she had to be removed from office, should not be implemented.”

 

  1. Was the President’s decision based on good reason/rational?

 

  1. In this regard, the Committee notes that the President’s letter, dated 25 April 2019, makes it clear that his decision was based on the findings of the Enquiry and that these findings, which are based on the evidence before the Enquiry, are of an extremely serious nature. Further, the President writes that he had considered their representations to him but that he did not find that they had raised “any response or reason not to accept the Panel’s conclusion”.

 

  1. Furthermore, the Committee is of the view that the representations placed before it by Adv. Mrwebi do not raise any reason for it to find that the President did not apply his mind properly to the matter before him.

 

 

  1. Findings

 

  1. In respect of Adv. Jiba, the Committee finds no reason to restore Adv. Jiba to the office of Deputy National Director of Public Prosecutions in that:

 

  1. The President complied with the provisions of section 12(6)(a) and (b) of the National Prosecuting Authority Act, 1998, in reaching his decision.

 

  1. The process followed by the President in reaching his decision was fair.

 

  1. The President applied his mind properly on this matter.

 

  1. In respect of Adv. Mrwebi, the Committee finds no reason to restore Adv. Mrwebi to the office of Special Director of Public Prosecutions in that:

 

  1. The President complied with the provisions of section 12(6)(a) and (b) of the National Prosecuting Authority Act, 1998 in reaching his decision.

 

  1. The process followed by the President in reaching his decision was fair.

 

  1. The President applied his mind properly on this matter.

 

 

  1. Recommendation

 

  1. The Committee recommends that the National Assembly resolve not to restore Adv. Nomgcobo Jiba to office of Deputy National Director of Public Prosecutions.

 

  1. The Committee recommends that the National Assembly resolve not to restore Adv. Lawrence Sithembiso Mrwebi to office of Special Director of Public Prosecutions.

 

Report to be considered

 

Documents

No related documents