Jiba challenges Mokgoro report in court, wants the filling of the Deputy NDPP post halted pending review
8 August 2019
Former senior prosecutor Nomgcobo Jiba has approached the Western Cape High Court, challenging Justice Yvonne Mokgoro's report which found she was unfit for office.
Jiba launched the judicial review application on Wednesday, her lawyer Zola Majavu confirmed to News24.
In the notice of motion filed in court, Jiba is asking the court to order President Cyril Ramaphosa and the National Director of Public Prosecutions (NDPP) to reinstate her to the position of deputy national director of prosecutions position "with all associated employment benefits with immediate effect".
She also wants the court to interdict or prohibit the president and the NDPP from filling the position until the finalisation of the review.
Jiba also wants the parliamentary process against her to be stayed pending the review application.
In part B of the application, Jiba wants the court to order that Ramaphosa violated the Constitution and therefore acted unlawfully when he instituted an inquiry in terms of section 12 of the NPA act against her. She also wants section 12(6)(a)(I) of the NPA Act, Act 2 of 1998 to be declared unconstitutional to the extent that it empowers the President.
She believes section 12(6)(c) and section 12(7) of the Act should be declared unconstitutional in that the requirement of a simple majority of Parliament for the removal of the National Director, Deputy National Director, Director and Special Director of the Public Prosecutions rather than a two thirds majority is inimical to prosecutorial independence.
Jiba's papers argue that the terms of reference for the Mokgoro Inquiry into her fitness to hold office be reviewed and set aside on the basis that they amounted to an "unconstitutional investigation into binding court judgments and order and/or violated the principle of prosecutorial independence".
In April, Ramaphosa fired Jiba and her colleague advocate Lawrence Mrwebi from the National Prosecuting Authority (NPA).
The inquiry found that both of them were "not fit and proper to hold their respective offices", according to a statement from the Presidency at the time.
Mokgoro's report stated that Jiba's conduct, on multiple occasions, showed a "lack of conscientiousness", while Mrwebi was found to have failed to act without favour, and to the prejudice of the NPA.
Jiba and Lawrence Mrwebi were given10 working days to inform both houses of Parliament why they should be reinstated in their positions at the NPA.
Following her dismissal, Jiba released a statement saying that she pleaded with the inquiry to make recommendations that would strengthen the independence of the NPA, but it failed to do so.
"I stand by my evidence given to the inquiry and intend to ensure that my actions were all done to advance prosecutorial independence and not to undermine them," she said at the time.
Jiba said Ramaphosa's decision to declare her a "prohibited public servant will not stand judicial scrutiny because it is self-evidently wrong, amounts to abuse of executive power, alternatively a failure to properly exercise that power".
She also said there are "numerous elementary but gross errors of judgment made by the inquiry that a review application to the high court will demonstrate".
Jiba said it was "inimical to prosecutorial independence to impugn my decision to authorise the prosecution of Colonel [former KZN Hawks boss Johan Booysen in circumstances where he must answer for the murder of more than twenty (20) black suspects.
"I point out the race of the suspects because I know that if the roles were reversed and a black policeman had overseen the murder of over twenty (20) white suspects, I would be regarded as a heroine for prosecuting such an accused."
She said whatever the inquiry and the president’s conclusions are on her decision as a prosecutor regarding the Booysen matter, there were over twenty families in the Cato Manor whose children were gunned down in police raids that must still be explained to the public through the court system.
"The blood of those killed in these raids will continue to seek justice until Booysen takes the stand to explain his role."
She said another issue which she believes the inquiry "missed" is that the Supreme Court of Appeal found nothing wrong with her role in prosecuting Booysen.
"The inquiry is not a Court of Law and may not issue a recommendation that contravenes a factual finding of a Court of Law," she said.
"The inquiry failed to grasp basic constitutional principles governing its work- more particularly that it is not entitled to overturn the findings of a court.
"The president also failed to respect the order of the SCA in so far as he accepted that I acted incompetently when I authorised the charging of Booysen."
She said the inquiry and the president were wrong to "impugn" her conduct in relation to the case of former Crime Intelligence boss Richard Mdluli and the Spy Tapes saga.