She’s won this round, but it’s not yet time for the Jiba jive
Former prosecutions head has massive court victory, but there's still the little matter of disciplinary action
Nomgcobo Jiba’s lawyer says the former prosecutions head has been “vindicated” by the Appeal Court’s rejection of a ruling that she was “unfit” to practise.
But while the National Prosecuting Authority has stated that there is “no legal barrier” stopping Jiba from returning to work, the advocate faces another major legal hurdle before she’s in the clear: a court ruling that compels the president to take disciplinary action against her.
The North Gauteng High Court last year ordered former president Jacob Zuma to “institute disciplinary inquiries against Jiba and [special director of public prosecutions Lawrence] Mrwebi into their fitness to hold office in the National Prosecuting Authority and to suspend them pending the outcome of those inquiries”.
But, crucially, it suspended that order pending the outcome of the party’s ultimate appeal of General Council of the Bar (GCB) judgment.
On Tuesday, Jiba and Mrwebi successfully challenged that GCB judgment by North Gauteng High Court Judge Frans Legodi, who had found that – based on Jiba’s handling of the case against former crime intelligence boss Richard Mdluli – she was unfit to practise as an advocate.
In a judgment that split the Supreme Court of Appeal three-to-two, the SCA reversed Legodi’s decision on the basis that the GCB had established “no misconduct” on Jiba’s part.
In the court’s majority ruling, however, Judge Jerry Shongwe did note that certain aspects of Jiba’s conduct in relation to the withdrawal of the charges against Mdluli, and her later response to litigation challenging that withdrawal, suggested that she was incompetent.“Perhaps one may infer some form of incompetence with regard to her duties, which may be a ground to remove her from being the DNDPP [deputy national director of public prosecutions] but not sufficient enough to be removed from the roll of advocates,” the judge said.
He added: “Jiba also referred, in her answering affidavit, to the view of two senior state prosecutors who also handled this matter, namely Advocate Andre Becker and Advocate Rita Viljoen, who expressed the view that there was insufficient evidence to prosecute Mdluli on the fraud and corruption charges.
“It follows therefore that the GCB failed to establish any misconduct against Jiba”.
At this stage, it is unclear whether the GCB will attempt to challenge this decision in the Constitutional Court. But, given the strong dissenting views expressed by judges Christiaan van der Merwe and Eric Leach in their minority ruling, the council may well believe it has grounds to fight the Appeal Court majority ruling.
More pressingly for Jiba, however, is her and the NPA’s bid to appeal the North Gauteng High Court ruling that compels President Cyril Ramaphosa to initiate disciplinary action against her based on the previous order made against the Presidency under the Zuma administration.
In that decision, the court stated that “the adverse findings and comments” made in four judgments against Jiba and Mrwebi had “a direct effect on and erodes the public confidence in the NPA as a law enforcement agency”.
“It is therefore essential for the president as authorised, to act decisively and swiftly when the situation calls for such as in this case ... we are of the view that the president's failure to act under the circumstances constitutes a dereliction of his constitutional and statutory duties.“His failure to act as authorised is thus reviewed and set aside,” the ruling stated.
Jiba’s lawyer, Zola Majavu, has told Times Select that he is seeking clarification on whether, given Jiba and the NPA’s pending appeal against this decision, the advocate can go back to work.
She has been on special leave for the past two years.
The NPA’s Luvuyo Mfaku told Times Select that there was “nothing precluding” Jiba and Mrwebi from returning to the office, “but we would expect them to engage with the NDPP about when”.
He added: “We are pleased with the judgment. It is a vindication of the rule of the law.”
Mfaku has confirmed that the NPA will be seeking to appeal the ruling that Jiba should face an inquiry. That ruling also found that prosecutions head Shaun Abrahams acted irrationally when he withdrew fraud and perjury charges against Jiba.