Durban - President Jacob Zuma is under a legal spotlight to explain why he has taken no action against two senior National Prosecuting Authority officials who have repeatedly been accused by judges of “serious impropriety”.
In an urgent application lodged with the Pretoria High Court, legal watchdog body Freedom Under Law wants an order compelling Zuma to suspend Nomgcobo Jiba and Lawrence Mrwebi pending an investigation of their conduct. In particular, the body wants their roles in the decision to withdraw fraud and corruption charges against crime intelligence boss Richard Mdluli and the attempted prosecution on racketeering charges of KwaZulu-Natal hawks head Major-General Johan Booysen to be investigated.
Freedom Under Law further wants a decision by newly appointed National Director of Public Prosecutions Shaun Abrahams to withdraw criminal fraud and perjury charges against Jiba relating to the Booysen matter, allegedly because “there were no prospects of success”, to be set aside.
The watchdog says the matters it raises are of “paramount public importance” because they go to the core constitutional question of whether the government can, by bypassing the requirements of law, “control who is to lead and operate one of South Africa’s most important crime-fighting units”.
“The serious allegations against the two - who wield enormous public power and occupy high-level positions - have not been properly dealt with in accordance with statutory and constitutional powers and duties imposed both on the national director of public prosecutions and the president.
“And, in the interim, the NDPP has now invested Jiba with greater responsibilities, putting her in charge of all prosecutors in the country,” Freedom Under Law’s executive officer, Nicole Fritz, says in her affidavit lodged with the court.
She said the NPA needed to be insulated from political and other interference. Each day that the two officials continued in office damaged public confidence in the organisation.
Fritz used several “judicial pronouncements” to justify her case, including the “Mdluli application” - which resulted in judicial condemnation for the pair from a high court judge and five judges of appeal.
She revealed that the pair ignored the advice of three teams of senior advocates that their decision to withdraw the charges was incorrect, they would lose in court and they would get a roasting from the judges. She also quoted from the judgment of Durban High Court Judge Trevor Gorven, who ruled that racketeering charges against Booysen must be dropped and found that Jiba - the acting national director of public prosecutions at the time - had no evidence before her to authorise his prosecution, and that she had lied in the court proceedings.
She then turned to the “Yacoob report” - the findings of a committee of inquiry instituted by now-ousted NDPP Mxolisi Nxasana and headed by retired Constitutional Court Judge Zak Yacoob - which Zuma had had for more than a year but, despite requests, had refused to make public.
Fritz said Freedom Under Law obtained the report late last month after it was filed by the General Council of Bar in a separate court matter in which the general council was trying to disbar the two advocates.
“The report is damming… finding serious impropriety,” she said. “But these findings have been simply ignored.”
Fritz said Nxasana, after obtaining legal opinion that Zuma should take action in the matter, began “making emphatic pleas” to the president and the minister of justice to exercise their powers. But these fell on deaf ears.
She said courts were generally unwilling to usurp the powers of decision-makers. But in this matter, Zuma’s failure to act was “symptomatic of a closed mind or no mind at all”. “There is a real risk that any decision taken by him may well be tainted by incompetence or even bias,” she said.
The matter is expected to come before the court next week when the issue of interim relief - an interdict preventing the two officials from “discharging functions and duties” pending the outcome of any inquiry - may be argued.
NPA spokesman Luvuyo Mfeka confirmed on Thursday that notices of opposition had been filed in the matter. The Presidency did not respond to requests for comment.
The Mercury
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