This is not a "smear campaign", this is fact Minister Radebe
The DA's fears that Acting National Director of Public Prosecutions (NDPP) Advocate Nomgcobo Jiba might be appointed to this position on a permanent basis, were not assuaged by Justice Minister Jeff Radebe's uncharacteristically clumsy answers to my questions in the National Assembly on what will happen in the event that the Constitutional Court should uphold the Supreme Court of Appeal's judgement against the appointment of Adv Menzi Simelane.
Asked what his advice to the President would be if President Zuma wanted to appoint Jiba, Radebe complained that he was not a sangoma who could predict who the President would want to appoint.
His advice to President Zuma at the time of the Simelane appointment (which is reflected in the case records and in the Supreme Court of Appeal judgement) fell hopelessly short of the proper enquiry which the Supreme Court of Appeal (SCA) said was necessary to determine whether a candidate was fit and proper. The SCA ruled that the question on whether a candidate has the statutorily required qualities to render them fit and proper rests not on the President's subjective views, but on jurisdictional facts, the objective existence of which can be shown.
If the Constitutional Court upholds the SCA judgement, and if the President appoints Adv Jiba, then objective facts such as her threat to withdraw the National Prosecuting Authority (NPA) from the International Association of Prosecutors (IAP) would become relevant. That threat was the subject of my questioning yesterday, and it clearly hit a raw nerve.
My information (from trusted sources) is that Adv Jiba, upon hearing about the nomination of Adv Gerrie Nel for a Special Achievement Award for his successful prosecution of Mr Jackie Selebi firstly said that the NPA should have been consulted, and then threatened to withdraw the NPA from the IAP.
The IAP has three categories of membership: individual prosecutors, associations of prosecutors, and prosecuting authorities. Nothing stops individuals or associations from nominating, or from motivating a nomination as they see fit. Adv Jiba cannot withdraw individuals or associations from the IAP. To withdraw the NPA from the IAP would be to confirm the many signals that the NPA is no longer focussed on "the proper and independent prosecution of offences" which is the IAP's objective.
The IAP was founded at the United Nations in Vienna in 1995 and its "Standards of professional responsibility and statement of the essential rights and duties of prosecutors" is considered international "soft" law (absent a formal international convention).
The Justice Minister's sole answer to my question was that there is no intention to pull the NPA out of the IAP and that Adv Jiba had in fact attended the IAP in mid-2011. That proves exactly nothing since the nomination and award occurred after that conference. His further retort that I was joining a media smear campaign is, quite simply, rejected.
It is Adv Jiba herself who signed the warrant for the arrest of Adv Nel. That arrest is now the subject of a civil claim for wrongful arrest. It is Adv Nel who successfully prosecuted Adv Jiba's husband for stealing a client's trust fund money. The President recently expunged Mr Booker Nhantsi's criminal record. Impartiality is perceived to be the casualty of special personal interests in Adv Jiba's case.
Now the Minister likewise appears to be unable to bring himself (as I asked) to encourage Adv Nel to go and receive his award and to congratulate him. Did he not want to guarantee that Adv Nel would not be prevented from going to the award ceremony, or did he not dare? Does he not want to congratulate him, or does he not dare?
Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, August 23 2012
Click here to sign up to receive our free daily headline email newsletter
