The judgment came as a result of Jiba (in her capacity as the then acting National Director of Public Prosecutions) authorising the charging of Major General Booysen (Booysen) with contravening certain provisions of the Prevention of Organised Crime Act – in terms of which such prosecution can only take place if authorised in writing by the National Director of Public Prosecutions. Booysen challenged, with success, the authorisation granted by Jiba. It transpired that Jiba had attested to false allegations in authorising the proceedings against him. On this, the Court stated that the case for her removal or suspension had not been made, despite acknowledging her attempt to deceive the courts.
On the second issue against Jiba, that of the spy tapes case where the Supreme Court of Appeal (SCA) had made adverse remarks over her failure to hand over the recordings to the Democratic Alliance in accordance with a court order, the Court found that she had no case to answer as there was no evidence of her acting in bad faith or even with an ulterior motive. On this the Court concluded that no case had been made for her to be suspended or removed from the advocates’ roll. As in the Booysen matter above, despite clear wrongdoing by Jiba, the Court did not find that the wrongdoing warranted being struck off the Roll of Advocates.
In the Mdluli matter previously decided by the SCA, the Court found that her decision to stop the prosecution of Mdluli displayed conduct not befitting an officer of court, and also a person of her calibre within the NPA. Despite the strong evidence of wrongdoing against Mdluli, Jiba had insisted on withdrawing the charges against him. It is on this basis that the Court found that she displayed an ulterior motive and therefore was not fit and proper for her job. Regarding Mrwebi, the Court found his conduct in the same matter dishonest as he had sought to mislead the Court in those particular proceedings. He too was declared not fit and proper, based on his conduct.
On the question of what happens next – arguably the chances of success in any appeal are very slim. This is due to the fact that this North Gauteng High Court decision is off the back of previous findings by other courts pertaining to the decision not to proceed with the prosecution against Mdluli. It is settled law that leave to appeal is normally granted where there is a reasonable possibility that another court may come to a different conclusion either on the facts or law or both. In this instance, that would be unlikely.
This is not the first time that a court has questioned the integrity, and at times, the unlawful conduct of both Jiba and Mrwebi. In both Booysen’s challenge before the KwaZulu-Natal High Court and before the 2014 Supreme Court of Appeal’s decision in the Mdluli matter, aspersions were cast on both Mrwebi and Jiba’s conduct and character. It is therefore highly unlikely that a different court will find that the pair acted with integrity, given the facts above.
As such, in all likelihood, the decision that they are not fit and proper will likely stand, as is their resultant being struck off the advocates’ roll. Being struck off the advocates’ roll means that both Jiba and Mrwebi are simply ineligible for their positions, which require one to be fit and proper persons, amongst other things. Based on the Supreme Court of Appeal’s reasoning in Democratic Alliance v President of the Republic of South Africa and Others in which the President’s appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) was held to be inconsistent with the Constitution and therefore invalid – one would be hard-pressed to legally justify their continued employment by the Authority. Ultimately, the decision affirms the courts’ role in holding those who wield public power accountable for the manner in which such power is used.
The decision also emphasises the high standard required of officers of the court with regard to the manner in which they conduct themselves, in order to meet the ‘fit and proper’ standard that legislation imposes. It is also worth stating that the NPA, in line with the Constitution, must exercise its functions without fear, favour or prejudice. However, the decisions made by the NPA can still be reviewed by a court of law in the event that such decisions are irrational and unlawful. After all, South Africa is a constitutional democracy where any laws or conduct inconsistent with its provisions and obligations have no place. The Constitution not only empowers those who wield public power, but also imposes limits on their power. The Rule of Law too is a founding value and on that basis, no-one is above the law, and everyone is subject to the Constitution and the law.
By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights