Zuma must act against Jiba, Mrwebi and Mzinyathi - Mxolisis Nxasana

In NPA Annual Report outgoing NDPP says there is compelling justification for disciplinary proceedings to be taken against these officials (May 29 2015)

Extract from the National Prosecuting Authority Annual Report 2014/15 by National Director of Public Prosecutions Mxolisi Nxasana, May 29 2015

[See TimesLive report on the background here - PW]

Service delivery environment

In order to fully understand the activities of the NPA, it is important to outline the context and environment in which the organisation operates. For many South Africans, the issue of safety and security is of great concern, and the long-term vision of the JCPS Delivery Agreement for all people in South Africa to be and feel safe, resonates fully with them.

It is in this context that the NPA seeks to deal with criminal cases efficiently and effectively. As the organisation at the end of the criminal justice system value chain, the NPA performs a crucial function through its work of prosecuting cases in order that perpetrators of crime can be appropriately sentenced or dealt with for the crimes they have committed.

For this reason any inefficiencies in the processes of departments that supply the NPA with cases, or those responsible for the effective operations of the courts in which it operates, have a negative impact on its ability to succeed. Stakeholder relations remain a key success factor for the NPA and priority is given to this area at all levels. The NPA actively participates in the forums instituted by the Chief Justice, case flow management forums at all levels as well as other interdepartmental fora.

Ensuring that trial cases proceed when they are set down for trial remains a primary challenge that the CJS has not adequately addressed. The implementation of pre-trial hearings identified by the NPA, Legal Aid South Africa and the Chief Justice as one of the solutions to prevent remands of trial-ready cases has been slow in gaining traction, particularly in the lower courts. This has been compounded by the placing of too few trial cases on the court rolls, resulting in wasted court hours. The implementation of pre-trial hearings across all courts will further receive attention over the strategic period.

The norms and standards issued by the Chief Justice, published in the Government Gazette on 28 February 2014, may lead to increased court hours, which should result in increases in the number of matters finalised through verdicts. An important element of ensuring that productivity increases is the monitoring of the performance of the courts. The NPA supports the office of the Chief Justice and the adoption of the reporting template for the Provincial Efficiency Enhancement Committees (PEEC) where the NPA is represented by the Director of Public Prosecutions (DPP).

Inadequate role planning and case scheduling remain a concern as they impact on the finalisation of cases; however, these are monitored and reported at the PEEC meetings.

The NPA continues to provide its services within the context of the austerity measures imposed on all government departments. The NPA has sought to use available resources more effectively giving meaning to the adage “doing more with less”. In particular, its committed prosecutors have, with great dedication, continued their efforts to successfully prosecute accused, some of whom have deeply wronged society through their actions. Another way in which it has done so is through its Legal Affairs Division (LAD), whose research and legal opinions have, in some cases, revealed incorrect application of the law, thereby saving the NPA unnecessary costs.

The decline in the performance of the high courts was mainly because of the unavailability of key role players and the loss of court days. Fewer court days result in fewer finalised cases. The number of court days decreased by 2.6% from the previous year and resulted in 2.3% fewer cases being finalised, including alternative dispute resolution mechanism (ADRM).

In an environment in which technology has become ever more sophisticated, a particular challenge is to successfully prosecute cybercrime cases in an effort to combat this growing international phenomenon. A special focus on cybercrime cases during the year included the skills development of relevant prosecutors, and the NPA is reaping the rewards of this strategy.

The special focus resulted in achieving both a higher conviction rate and added convictions. Increasingly, the international community is calling for an integrated approach to the prosecution of these cases, and the NPA has cooperated with and contributed to international organisations such as the Organisation for Economic Co-operation and Development (OECD), the International Association of Prosecutors (IAP), as well as African organisations such as the Africa Prosecutors Association (APA), and other South African stakeholders (see detail below).

The organisation was constrained in achieving its target for the number of cybercrime cases successfully prosecuted by the lack of new cybercrime cases received from the South African Police Service (SAPS).

In an ongoing effort to improve the perception of the CJS among the South African public, the NPA continues its contribution towards the backlog project by the DoJ&CD which began in 2006. As a result, the number of backlog cases in the lower courts has been significantly reduced. A number of the temporary backlog courts have become permanent courts.

In addition, a number of high profile matters – for example, the arrest of Radovan Krejčíř on charges of dealing in drugs and attempted murder and the conviction and sentencing in the Channelle Henning murder case – have strengthened public confidence in the CJS and, in particular, in the NPA.

The televising of the Oscar Pistorius trial has had both a positive and negative impact for the NPA. In general the public has a greater confidence in the system as a whole. However, individuals who may be required to testify in other cases have become more hesitant to participate in the belief that they may face the intensity of cross examination depicted during the Pistorius trial.

The lack of dedicated courts and staff in some of the SCCU regional offices continued to be a challenge, adversely impacting on the number of backlog cases in the unit. Long, drawn-out trials further continued to impact negatively on the number of backlog cases. Changes in magistrates in different regions also contributed to an increase in backlog cases.

High profile matters – NPA

In Freedom Under Law versus National Director of Public Prosecutions and Others 2014 (1) SACR 111 (GNP) April 2014), the North Gauteng High Court (per Murphy J) made certain unfavourable credibility findings against three senior members of the NPA, namely, Advocates Nomgcobo Jiba, Sthembiso Lawrence Mrwebi, and Sibongile Mzinyathi. The judgment of Murphy J was confirmed by the Supreme Court of Appeal (SCA) in National Director of Public Prosecutions versus Freedom Under Law 2014 (4) SA 298 (SCA).

Following the above-mentioned decisions of the High Court and Supreme Court of Appeal, the NPA, via the office of the State Attorney, briefed senior counsel to furnish a legal opinion as to whether, among others, disciplinary steps ought to be taken against the abovementioned senior members of the NPA. The legal opinion was furnished to the State Attorney on 7 July 2014.

In his legal opinion, senior counsel in summary concludes that the findings of Murphy J in the High Court, as confirmed by Brand JA in the Supreme Court of Appeal, constitute compelling justification for disciplinary proceedings against Advocates Jiba, Mrwebi and Mzinyathi. The fact that they misled the Court and were prepared to lie under oath not only indicates a strong prima facie case of serious misconduct, but also casts grave doubt on their fitness to hold office.

He consequently recommends that the President should, in terms of section 12(6)(a) of the NPA Act, consider provisionally suspending the mentioned senior NPA managers pending an inquiry into their fitness to hold the office of Deputy National Director of Public Prosecutions and Directors of Prosecutions, respectively, to be presided over by a retired judge of the High Court.

He further recommends that a criminal investigation for perjury be opened against all three members of the NPA and that the findings against the mentioned NPA members made in the judgments be submitted to the General Council of the Bar as a matter of urgency to consider whether an application should be brought against them in terms of section 7 of the Admission of Advocates Act.

In a memorandum dated 18 July 2014 addressed to the Minister of Justice and Correctional Services, the NPA explained in detail to the Minister the NPA’s motivation and arguments pertaining to a request that the President should provisionally suspend Advocates Jiba, Mrwebi and Mzinyathi from their respective offices.

The Minister was requested to forward the contents of the memorandum to the President and request the President to provisionally suspend the three senior NPA members from their respective offices pending an enquiry into their fitness to hold such offices and the finalisation of the envisaged criminal investigations and outstanding inquiries and investigations and action of the General Council of the Bar.

In a memorandum dated 31 July 2014, the CEO of the NPA informed the Minister that the NPA had appointed a fact finding committee to investigate allegations that certain employees of the NPA, including senior members, had committed unethical and unprofessional conduct and to advise on appropriate remedies if contraventions had occurred. The Minister was informed that the nature of the allegations and the seniority of the officials allegedly involved necessitated the involvement of an outside committee of suitable credibility.

Therefore, the CEO appointed retired Judge Zak Yacoob as the chairperson of the committee. He was assisted by Advocate TK Manyage, a member of the Johannesburg Bar. The committee has finalised its report. The committee, among others, also made certain unfavourable credibility findings against Advocates Nomgcobo Jiba, Sthembiso Lawrence Mrwebi, and Sibongile Mzinyathi. On 27 February 2015 the CEO informed the Minister about the findings and recommendations of the committee.

During the beginning of September 2014, it came to the National Director’s attention that the Minister had publicly indicated that he has not yet approached the President regarding the abovementioned recommendations of the National Director.

The opinion was held that failure to bring these serious matters to the attention of the President is causing a credibility crisis within the NPA as a whole and that it was appropriate to urgently bring stability within the NPA and it is of utmost importance that the matter should be communicated to the President as a matter of urgency.

Therefore, a decision has been taken to approach the President directly so as to bring the matter ocially under the President’s attention. Accordingly, in a letter dated 12 September 2014, the National Director wrote directly to the President and brought the matter to his personal attention. The National Director personally handed this letter to the President.

Furthermore, in a letter dated 17 September 2014 the National Director responded to certain questions raised by the Minister; he informed the Minister about further instances of misconduct committed by and adverse findings made against Advocates Jiba and Mrwebi; informed the Minister about steps already taken by the NPA and steps to be taken against the three senior members of the NPA concerned; informed the Minister about the NPA’s submission made directly to the President; and again requested the Minister to also engage with the President regarding the proposed suspension of the three senior members of the NPA as a matter of urgency.

It was also pointed out to the Minister that after the High Court judgment in April 2014, the National Director requested reports from Advocate Jiba regarding the Mdluli corruption matter, which request was ignored. Further, the National Director has repeatedly requested an official handover report on matters being dealt with by Advocate Jiba, without any response. The National Director held the view that such insubordination is intolerable and makes it very difficult to perform his duties.

At the time of finalising this report, the position relating to the conduct of Advocates Jiba, Mrwebi and Mzinyathi was as follows:

(a)  The fact finding committee has finalised its work and submitted a report to the National Director. As indicated above, on 27 February 2015 the CEO informed the Minister about the findings and recommendations of the committee

(b)  The General Council of the Bar has already brought an application in the High Court, Gauteng Division, for an order striking the names of each of the respondents (Advocates Jiba, Mrwebi and Mzinyathi), from the roll of advocates, alternatively, to suspend them from practising as advocates for such period as the court may deem appropriate. Advocates Mrwebi and Mzinyathi have already indicated that they will oppose the application

(c)  Criminal proceedings have been instituted against Advocate Jiba in the Regional Court, Pretoria. The charges are fraud and perjury and the case has been postponed to 10 June 2015

(d)  Perjury charges have been laid against Advocates Jiba, Mrwebi and Mzinyathi. This case is still under investigation by the South African Police Service

(e)  Criminal proceedings are also outstanding against Advocate Mrwebi for contravening section 32(1)(b), read with sections 1, 20, 24, 25, 32(1)(a) and 41(1) of the NPA Act

In spite of the above-mentioned urgent requests directed to the Minister and the President, and the outstanding criminal proceedings against Advocates Jiba, Mrwebi and Mzinyathi, no feedback has been received from the Minister or the President.

As emphasised by the High Court, “the respondents are unbecoming of persons of such high rank in the public service, and especially worrying in the case of the (acting) NDPP, a senior officer of this court with weighty responsibilities in the proper administration of justice. The attitude of the respondents signals a troubling lack of appreciation of the constitutional ethos and principles underpinning the offices they hold.” Therefore, it is important for the Minister and the President to fulfil their constitutional mandate and to act as a matter of urgency.

See full report here - PDF.