Jiba damns Nxasana for her woes

Nomgcobo Jiba has a fight on her hands to avoid being struck off the roll. Picture: Supplied

Nomgcobo Jiba has a fight on her hands to avoid being struck off the roll. Picture: Supplied

Published May 31, 2015

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Johannesburg - National Deputy Director of Public Prosecutions Nomgcobo Jiba says her boss, Mxolisi Nxasana, was responsible for the withdrawal of criminal charges against the head of the KwaZulu-Natal Hawks, Major-General Johan Booysen.

After the withdrawal of charges, Booysen filed a R10-million claim against the National Prosecuting Authority (NPA).

While Jiba makes no mention of this lawsuit, she alleges Nxasana blocked her from appealing against a high court decision that set aside the charges of racketeering and murder against Booysen.

She says Nxasana also stopped her from getting a crucial statement from a witness in Greece – who was linked to the Cato Manor unit in Durban that Booysen headed.

Jiba made these damning allegations in submissions to the North Gauteng High Court in Pretoria, where she is opposing an application by the General Council of the Bar of South Africa for her to be struck off the roll of advocates. The Bar lodged the application last month.

In its papers, the Bar, represented by its chairman, advocate Jeremy Muller, says that Jiba, the head of the National Prosecuting Authority’s commercial crime unit, Lawrence Mrwebi, and the Director of Public Prosecutions in Pretoria, Sibongile Mzinyathi, are not fit and proper to continue practising as advocates.

The Bar lodged the application following scathing comments made in rulings against the trio by the Supreme Court of Appeal and the high court in Pretoria. Muller included the rulings in his court applications.

Muller asked the high court in Pretoria to consider the finding by Judge Trevor Gorven, sitting in the Durban High Court, that Jiba had not applied her mind properly when she decided to prosecute Booysen.

Booysen was charged with racketeering, murder and defeating the ends of justice in 2012. Judge Gorven found Jiba had failed to meet the simplest minimum requirements in charging Booysen and set aside the decision.

Jiba says the prosecution has a strong case against Booysen, but alleges that its efforts were blocked by Nxasana. She says the prosecution was appealing against Judge Gorven’s ruling when Nxasana blocked it from continuing.

“Nxasana questioned the merits of an appeal and suggested that Laurence Hodes (the State’s counsel) may have advised this in order to save his own reputation. He also suggested the prosecution team wanted to take the matter on appeal in order to save my reputation. Nxasana also indicated that he wanted the appeal to be withdrawn,” Jiba says in papers.

She says the prosecution team were taking steps to have a crucial statement signed by the witness when they were “instructed by Nxasana to halt the process”.

Jiba says the witness was then in Greece.

Due to security concerns, he was unwilling to return on his own to South Africa, but was willing to have the statement signed at the South African embassy there.

In papers, Jiba says the statement was intended to corroborate the evidence in the possession of the prosecution team that “Booysen was involved in the various activities giving rise to the charges against him as similar fact evidence, which is admissible in racketeering prosecutions”.

Jiba also denies involvement in the decision to drop the charges of fraud and corruption against crime intelligence boss Richard Mdluli. But the appeal court, in an appeal by Freedom Under Law, overturned the decision. The charges against Mdluli were reinstated and he is to stand trial in August. Jiba says her decision was correct.

On the spy tapes matter, Jiba says she was cautious and did not want to infringe on the rights of the parties, President Jacob Zuma and the DA. “I respectfully submit this does not amount to conduct that is less objective, honest and sincere and does not render me not fit and proper to practise as an advocate.”

Jiba says the Bar failed to follow correct procedures when it filed its court application.

According to the NPA Act, she says, the Bar Council was supposed to summon her before an internal hearing before approaching the high court.

Jiba says the Bar could also have referred a request to Zuma to institute an inquiry into her fitness to hold office. “The affected party is normally afforded a right of hearing. Oral evidence is led and witnesses cross-examined. Only if the Bar Council is satisfied through the fair inquiry that the affected party is indeed not fit and proper, would it bring an application to strike her from the roll.”

Jiba says the Bar opted to roll the “two processes into one through” its court application. Jiba is adamant the bar did not afford her an opportunity to appear before it.

She questions why the Bar instructed former director of public prosecutions Menzi Simelane to appear before it, yet she “was denied” such an opportunity.

The Sunday Independent

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