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ATC191127:Report of the Select Committee on Security and Justice 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.

NCOP Security and Justice

[The following report replaces the Report of the Select Committee on Security and Justice, which was published on page 59 of the Announcements, Tablings and Committee Reports dated 27 November 2019]

 

Report of the Select Committee on Security and Justice 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 Select Committee on Security and Justice, 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 Chairperson of the Council, 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 the restoration to office at the NPA is recommended.

 

  1. On 28 June 2019, the President’s message containing his decision and accompanying documentation was referred to the Committee for consideration and report. The 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 Special 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 or 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. Nomgcobo Jiba and Adv. Lawrence Sithembiso Mrwebi were provisionally suspended from office at the National Prosecuting Authority by the President on 26 October 2018, in terms of section 12(6)(a) of the National Prosecuting Authority Act 32 of 1998, 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 National Prosecuting Authority Act 32 of 1998 (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 the 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 National Prosecuting Authority Act, Prosecuting Policy and Policy Directives and any other relevant laws in their positions as senior leaders in the National Prosecuting Authority and are fit and proper to hold the position and be a member of the prosecutorial service;
  • 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 National Prosecuting Authority;
  • 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 National Prosecuting Authority 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 National Prosecuting Authority 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 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.

 

  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 a letter 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 separate letters, both dated 25 April 2019, to Adv. Jiba and Adv. Mrwebi to inform them that he had decided to accept the recommendations of Enquiry Report. The correspondence acknowledges receipt of their submissions in response to his invitation to them to give reasons why he should not implement the recommendations of the Enquiry Report, as well as documentation filed during the Enquiry, which includes the submissions made to the Enquiry prior to the panellists compiling the Report. He writes 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:
  3. 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.
  4. the Panel concluded that you acted under external pressure in making decisions on charges General Booysen on the basis of what was indicated to you by IPID officials.
  5. 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.
  6. the Panel found that you failed to follow legal prescripts in your decisions.
  7. the Panel found that you brought the NPA into disrepute.
  8. the Panel concluded that you lacked the necessary conscientiousness and independence required of your position.
  9. 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.
  10. 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:
    3. 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 Mduli.
    4. The Panel concluded that you were wrong in law about the Inspector General of Intelligence’s mandate.
    5. 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;
    6. The Panel found that you lied in the Ledwaba trial under oath.
    7. The Panel noted that you were dishonest before the Enquiry itself. Such conduct cannot be countenanced for a person in your position.
    8. 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 respective positions of NDPP and SDPP 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, Adv. Jiba and/or Adv. Mrwebi ought to be restored to their positions in its view.

 

  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 procedures to follow in reviewing whether to restore or not to restore Advocate Nomgcobo Jiba and Advocate Lawrence Sithembiso Mrwebi to their positions in the National Prosecuting Authority. 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 of the National Assembly and National Council of Provinces Rules.

 

  1. On 19 July 2019, at a joint meeting of the Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice, the Committees discussed the procedures 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 but agreed that each would write to Adv. Jiba and Adv. Mrwebi inviting them to submit written representations to each Committee.

 

  1. Subsequently, the Committee corresponded with Adv. Jiba and Adv. Mrwebi, dated 23 July 2019, informing them that the Committee 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 by the Committee; and to provide any available documentary or other evidence that may be relied on for the representations. The Committee deadline for this was 8 August 2019.

 

  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 of the National Assembly and the Chairperson of the Select Committee on Security and Justice 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].”

 

  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 that the parliamentary process shall proceed as scheduled until 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 are 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 dismissed Part A of Adv. Jiba’s application, seeking, 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 Select 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 Special Director to office. The Committee understands that the Act envisages two distinct processes, namely the removal by the President and then proceedings to consider restoration to office. It is very clear to the Committee that its mandate is not to remove but to restore. 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 that it 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.

 

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. Applicable standard for fit and proper. 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 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 Applicant and Mr 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 GBC judgment. “

 

In Freedom Under Law (RF) NPC v National Director of Public Prosecutions and Others (89849/2015) [2017] ZAGPPHC 791; 2018 (1) SACR 436 (GP) (21 December 2017), the Supreme Court of Appeal

 

When the GCB took the matter 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 the Court had jurisdiction.

 

Further, the Committee notes that the Enquiry deliberated on this matter and found the argument that also clearly distinguished between the fit and proper test as it applies to Adv. Jiba and Adv. Mrwebi remaining on the roll of advocates is not the same as that applies to the fit and proper evaluation in terms of the NPA Act.:

 “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 notes also that Adv. Jiba raised this matter 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 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 allegation.

 

The Committee applied its mind to Adv. Mrwebi’s request to address Parliament through legal counsel on this matter. Although this was a late submission and the Committee was under no obligation to consider Adv. Mrwebi’s request, it nonetheless applied its mind in this regard. On his request to address Parliament in person, the Committee was disinclined to grant him such an opportunity given that this issue had already been ventilated in the Western Cape High Court.

 

The Committee also notes that both Adv. Jiba and Adv. Mrwebi had ample opportunity to raise their objections to their suspension and removal on this ground with the President but chose not do so. Nor did they elect to take the President’s decision on review at that stage. It was only in August and October 2019, respectively, that they raised this argument when Parliament had already begun its process.

 

 

  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 National Director, 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 Inquiry, 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 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 218 – 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 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, 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.

 

  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. Recommendations

 

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

 

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

 

Report to be considered.

 

 

 

 

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