There have been a number of efforts to prise deputy prosecutions head Nomgcobo Jiba from her powerful position in the National Prosecuting Authority (NPA). Of these, the high court judgment striking her from the roll of advocates, effectively barring her from her post, is the most devastating.
Less clear are the consequences of the judgment for the NPA as an institution. It has been mired in factional infighting and has struggled to restore its reputation for impartial prosecutorial decision making. Allegations of political meddling go back to the Thabo Mbeki administration, when the NPA was alleged to have been pulled into Mbeki’s personal political battles.
The 108-page judgment from judge Francis Legodi found that Jiba and Special Commercial Crimes Unit head Lawrence Mrwebi were not fit and proper to be advocates. Under the NPA Act they must have a legal qualification to practise in court.
They could try to enrol as attorneys, but that profession also has a fit and proper requirement, and they would likely struggle to fulfil it, given the scathing criticism from Legodi.
Despite repeated calls for Jiba’s removal — including from her former boss, Mxolisi Nxasana — deputy national directors are appointed by the president and can only be removed by the president after an inquiry into their fitness for office and if approved by parliament.
The calls for Jiba’s removal followed sharp criticism from the bench in three different court cases — all of them politically sensitive.
There was the "spy tapes" case, in which the DA is seeking to overturn the NPA decision to discontinue the prosecution of President Jacob Zuma for corruption.
There was the Booysen case, in which KwaZulu Natal Hawks head Johan Booysen challenged his prosecution for racketeering under the Prevention of Organised Crime Act.
And, finally, the case in which nongovernmental organisation Freedom Under Law challenged the decision not to prosecute notorious former crime intelligence head Richard Mdluli for fraud and corruption.
The application to strike Jiba off the roll was initiated by Nxasana when he asked the national advocates body, the General Council of the Bar, to look into the judges’ pronouncements.
During Nxasana’s brief stint at the helm of the NPA, he wrote to Zuma asking him to put the process for her removal in motion.
Nxasana also appointed former constitutional court justice Zak Yacoob to investigate the internal turmoil in the NPA and oversaw the proffering of a criminal charge of perjury for what Jiba had said under oath in the Booysen matter.
But instead, it was Nxasana who was hauled before a fit and proper inquiry. On the eve of the inquiry, a R17.3m settlement was reached and he left his post. A new national director, Shaun Abrahams, was later appointed.
The appointment of Abrahams, a career prosecutor, was met with cautious optimism, but that did not last long.
One of his first moves was putting Jiba in charge of the powerful National Prosecution Service portfolio and to broaden its mandate. After his appointment, the perjury charge against Jiba was dropped, Booysen was recharged and so was former prosecutor Glynnis Breytenbach — now the DA’s justice shadow minister.
The battle to get rid of Jiba was taken up by the DA and Freedom Under Law.
The DA has so far been unsuccessful in its court case trying to force Zuma’s hand to appoint an inquiry into Jiba’s fitness for office. The Western Cape high court found Zuma did not act irrationally when he decided to wait and see what the court would say in the striking off case.
If, as has been widely speculated, the president was trying to protect Jiba, his wait-and-see strategy backfired spectacularly.
If he had appointed an inquiry under the NPA Act, he would have had more wiggle room to keep her in her post. The findings of such an inquiry are not determinative; the president can still decide and parliament also has a role to play.
But when it comes to striking an advocate from the roll, politicians have no role whatsoever.
The only thing that can save Jiba and Mrwebi’s jobs now is a successful appeal.
Legodi found Jiba’s conduct in the spy tapes case and the Booysen case did not warrant a finding that she was not fit and proper. It was the Mdluli case that stumped Mrwebi and Jiba , with the court saying in no uncertain terms that they had gone out of their way to protect Mdluli at all costs.
"I cannot believe that two officers of the court [advocates] who hold such high positions in the prosecuting authority will stoop so low for the protection and defence of one individual who had been implicated in serious offences," said Legodi.
Jiba and Mrwebi are now on special leave and their posts have been filled by acting appointees.
But the bigger question is whether their departure will spell the end of the politicisation of the NPA and its factional battles.
This is hard to assess at this stage. For one thing, a successful appeal could change everything.
Also, reports on the internal factions in the NPA are speculative and based on unnamed sources.
It could also be that Jiba and Mrwebi’s departure will just tilt the balance in favour of another faction with an equally political agenda. And with so much high-level corruption, it may be too much to expect that the departure of two individuals, even high-level ones, would turn the NPA around.
However, what the judgment does show is that, in the end, there is accountability for the abuse of prosecutorial powers.