The Centre for Constitutional Rights (CFCR) welcomes the President’s decision, as it reaffirms the importance of the independence of the Office of the NPA, which requires prosecutors to fulfil their functions without “fear, favour or prejudice”.
The independence of the NPA – and ensuring that the Office fulfils its constitutional mandate without improper interference – is critical for the functioning of an effective criminal justice system. As the Constitutional Court stated in Corruption Watch NPC and Others v President of South Africa and Others, “The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds.”
The Mokgoro Commission, appointed in terms of section 12(6) of the NPA Act, was established to investigate whether both advocates were fit and proper to hold office within the NPA, following various adverse comments made against them in Court decisions. These adverse comments relate to their professional conduct, dealings with the Court and the manner in which they exercised their discretion in instituting, conducting and discontinuing criminal proceedings. This specifically relates to the controversial withdrawal of charges against the former head of the Crime Intelligence Unit within the South African Police Services, Richard Mdluli, the Spy Tapes case and the prosecution of the former KwaZulu-Natal Hawks boss, Johan Booysen.
The Commission’s Report, officially released on 26 April 2019, held that in general on the cases relating to Advocate Jiba that “…the Courts’ observance of Jiba’s attitude throughout the course of the various reviews was characterised by non-responsiveness and irreverence towards the Courts. Furthermore, Jiba lacked accountability and sought to shift responsibility when she was expected to act under an order”. The Commission emphasised that prosecutors are officers of the Court and are duty-bound to assist the Court, and, in doing so, uphold the Rule of Law. In relation to Advocate Mrwebi, the Commission specifically held that he did not act with integrity as required in terms of the NPA Act and the manner he fulfilled his duties “…was openly at variance with what is expected of a person in his position”.
The President’s decision, his reasons, as well as representations provided by the advocates, must be submitted to Parliament within 14 days – if Parliament is in session. If not in session, then within 14 days after Parliament commences again. Parliament is then required to pass a resolution within 30 days of receiving such notice (or as soon as reasonably possible), stating whether the removal is recommended or not.
Although this decision signals the nearing of the end of the road for Advocates Jiba and Mrwebi in the NPA, the Constitutional Court decision on the question of their removal from the Roll of Advocates – which is distinct from their fitness to hold office within the NPA – is still to be delivered.
The Commission’s findings remind us of the critical fact that prosecutors are bound to uphold the Rule of Law. In upholding it, public confidence in the institutional independence of the NPA could hopefully be restored. In the words of the Commission, the NPA “must instil a strong sense of constitutional values and belief in the rule of law”.
This decision of the President – while still awaiting parliamentary approval – is a small but very significant step in wresting one of the most important State institutions away from individuals who have not acted as the Constitution prescribes.
By Ms Christine Botha: Acting Director, Centre for Constitutional Rights
26 April 2019