02/09/2012. Acting National Director of Public Prosecutions Nomgcobo Jiba adress the media on the withdrawal of murder charges against the 270 Lonmin workers in Pretoria yesterday. Picture: Thobile Mathonsi

Johannesburg -

The general Bar Council wants three top National Prosecuting Authority (NPA) prosecutors struck off the roll because the are “not fit and proper” to hold office.

The embattled deputy National Director of Public Prosecutions (NDPP), Nomgcobo Jiba; Lawrence Mrwebi, head of the NPA commercial crimes unit; and Sibongile Mzinyathi are expected to a launch a strong legal battle in defence of their careers.

In an application lodged at the North Gauteng High Court, the Bar Council has accused Jiba, Mrwebi and North Gauteng Director of Public Prosecutions Mzinyathi of not being “fit and proper to continue practising as advocates” as well as unethical and sloppy conduct. In his application filed this week, GCB chairman Advocate Jeremy Muller has argued that the three have flouted the law governing the conduct of admitted advocates.

In his founding affidavit, Muller said: “I respectfully submit, however, that none of the respondents are fit and proper persons to continue practising as advocates, as contemplated by section 7 (1) of the Admission of Advocates Act.”

The trio have five days to inform the court whether they would oppose the application.

Mrwebi yesterday said he would file his notice to oppose it this week. The NPA Act requires prosecutors from director level to have legal qualifications that would equip them to appear before court and also that they be “fit and proper” for the job.

Should the court find they are not fit for the job, it would make them ineligible for their positions. The NPA laid a complaint of misconduct with the Pretoria Bar Council against the trio after both the Supreme Court of Appeal (SCA) and the high court made adverse comments on them in separate judgments.

In the matter brought by Freedom Under Law (FUL), Judge John Murphy ruled Mrwebi’s decision to withdraw fraud and corruption charges against the suspended head of SAPS crime intelligence, Richard Mdluli, was “illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it”. Murphy ruled that Mrwebi’s subsequent explanation that he had only provisionally withdrawn charges against Mdluli was “probably invented”.

The SCA confirmed this directly contradicted what Mzinyathi and Mrwebi had said under oath in the disciplinary hearing of former prosecutor Glynnis Breytenbach. Jiba had claimed under oath that the decision to withdraw charges was never brought to her attention.

The SCA, however, ruled that the matter was brought to her attention by Breytenbach in a 200-page memorandum.“They have fallen well short of their high duty to the court, which requires absolute honesty and integrity,” Muller said.

The application is yet another blow to Jiba as the matter comes hard on the heels of fraud and perjury charges laid by the NPA against her.

Durban High Court Judge Trevor Gorven has also previously condemned Jiba’s decision to prosecute KwaZulu-Natal head of the Hawks Johan Booysen, who was charged with racketeering and murder in connection with the Cato Manor Organised Crime Unit.

The unit was accused of operating like a hit squad but the charges were later withdrawn.

Jiba, who was then acting NDPP, came under fire when the court found she had lied about properly applying her mind to sworn statements before deciding to prosecute Booysen.

The appeal court was also scathing of Jiba in the case of “spy tapes” brought by the DA against President Jacob Zuma. Judge Mahomed Navsa ruled that Jiba’s handling of the |litigation was “not worthy of the office of the NDPP or National Directorate of Public Prosecutions”.

Muller has further argued that Jiba deposed an affidavit which the SCA described as “almost meaningless” in the Zuma matter. She ignored a court order and generally displayed a complete lack of interest in being of assistance to the High Court or the SCA.

“The FUL, Booysen and Zuma cases suggest her conduct showed a persistent pattern of behaviour which is inimical to the conduct expected and required of an advocate. In the circumstances, I ask for an order as set out in the notice of motion,” Muller argued.

The latest bid to remove the three prosecutors from the roll of advocates comes a month before the NDPP, Mxolisi Nxasana, appears before an inquiry set up by Zuma, which |will seek to determine whether |Nxasana is fit to hold office.


Sunday Independent