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State Capture, continued: Ghosts of Zuma and Conflicts of Interest lurk behind Jiba, Mrwebi SCA majority finding
State Capture, continued: Ghosts of Zuma and Conflicts of Interest lurk behind Jiba, Mrwebi SCA majority finding
Published Date: 2018-07-13 | Source: DailyMaverick | Author: Marianne Thamm
Former President Jacob Zuma's rape trial as well as allegations of corruption related to the arms deal formed the unseen architecture around Tuesday's Supreme Court of Appeal (SCA) majority decision overturning a North Gauteng High Court ruling striking Deputy National Director of Public Prosecutions, Advocate Nomgcobo Jiba, and NPA specialised commercial crimes head, Lawrence Mrwebi, from the roll of advocates. However, it's not over yet for the two Zuma-era loyalists.
There are a few simple facts with regard to Tuesday's SCA ruling.
Two of the three judges who ruled in favour of Advocates Jiba and Mrwebi's reinstatement as advocates, opening the way for Jiba's return to the NPA, have more than just a passing connection to former President Jacob Zuma.
Judge Jeremiah Shongwe, author of Tuesday's SCA ruling dismissing a September 2016 ruling by North Gauteng High Court Judge Frans Legodi that Jiba and Mrwebi be struck from the advocates roll, is the brother of Minah Shongwe, mother of Edward Zuma, President Jacob Zuma's first-born and eldest son.
Judge Shongwe is Edward Zuma's uncle.
The familial link between Judge Shongwe and former President Jacob Zuma was highlighted at Zuma's 2006 rape trail. Shongwe recused himself after Zuma's defence team had raised the matter with then Judge President Bernard Ngoepe.
Shongwe, when Zuma fathered Edward with Minah Shongwe in 1977, was Deputy Judge President of the former Transvaal. Minah Shongwe died in Swaziland in March 2018 after a long illness.
Michael Hulley, who was just starting out as Zuma's main "Stalingrad" strategist back in 2006, said that neither Zuma, nor he, would "confirm nor deny what has been said about Judge Shongwe".
Hulley added that "we would, however, like to lay to rest once and for all the perception that has been created that we have been trying to pick and choose a judge. We have the greatest respect for the independence of the judiciary and the integrity of judicial officers in particular."
The second judge who concurred with Shongwe's findings with regard to Jiba and Mrwebi on Tuesday is Judge Willie Legoabe Seriti.
Seriti not only chaired the "whitewash" Arms Procurement Commission which unsurprisingly found "not a single iota of evidence was placed before it" showing that bribes had been paid to consultants, public officials or members of Cabinet in the 1999 Arms Deal, but was also the judge who authorised the phone taps which resulted in the so-called "spy tape" recordings which formed the basis of an almost 10-year battle between the DA and the NPA.
Seriti served as the "interceptions judge" in 2007, including during the period when the NIA eavesdropped on telephone conversations between then NPA boss Bulelani Ngcuka and Scorpions head Leonard McCarthy. Back in 2009 Seriti told The Star that he could not remember whether he had authorised the phone tapping of Ngcuka and McCarthy, which ultimately led to charges against Zuma being dropped by the then head of NPA, Mokotedi Mpshe.
The charges of corruption were dropped against Zuma shortly before his election as president in 2009, on the basis of these "spy tape" recordings. In May 2018 the NPA had to eventually reinstate the 18 charges of corruption, money laundering and racketeering relating to "questionable" payments Jacob Zuma, now Accused No 1, allegedly received around the arms deal.
President Zuma was eventually forced into establishing the "Seriti Commission" under threat of court action by arms deal activist Terry Crawford-Browne. It was a commission dogged by controversy and resignations from the start.
In the Corruption Watch and Right To Know bid to set aside Seriti's findings, Leanne Govindsamy, Corruption Watch's head of Legal and Investigations, set out how, in announcing his findings in 2016, Judge Seriti went so far as to avoid ever mentioning former President Jacob Zuma, or Shabir Shaik. Shaik is referred to only once in the summary of evidence by Richard Young.
Govindsamy pointed out also that comments made by Judge Seriti during the questioning of Colonel Johan du Plooy, the senior lead investigator in the Shaik corruption case, suggested that the chairperson "believed that the events discussed in the Schabir Shaik case referred only to matters occurring after the conclusion of the SDPP (Strategic Defence Procurment Packages), and thus fell outside the Commission's terms of reference".
About Zuma and Shaik's relationship, Seriti said, "I am not quite certain in the evidence that is being adduced whether it fits into [indistinct] facts. I am really not sure. Last Monday I said to Advocate Pansergrow, I said he must make sure that whatever he testify or his clients testify about falls within our terms of reference. Now the Shaik matter that we are being told about now, I am not sure whether it falls within our terms of reference. My reading and understanding of that trial deals with issues which happened after the contract was signed."
Govindsamy said: "The Chairperson's comments, coming as they do three years into the life of the Commission, demonstrate that the Chairperson and the Commission misconceived the situation, misdirected themselves, and wrongly failed to investigate the content of the Shaik/Zuma/Thint matters and the related legal proceedings these entailed. Those matters are not dealt with at all in the Commission's Report."
The third judge who concurred with Shongwe and Seriti's judgment was Judge Baratang Constance Mocumie who was tasked on Tuesday with reading out the judgment. Two remaining SCA judges, Christiaan van der Merwe and Eric Leach, disagreed with the ruling, dismissing Jiba and Mrwebi's appeals against Judge Legodi's findings in favour of the General Council of the Bar.
Judges Shongwe, Siriti and Mocumie essentially found that the General Council of the Bar had not established any misconduct on the part of Jiba's handling of the prosecution of former Crime Intelligence boss Richard Mdluli.
Shongwe said that the main reason the North Gauteng High Court found that Jiba and Mrwebi were found to be "not fit and proper persons to remain on the roll of advocates" was their handling of the Mdluli case.
"It is significant to note that the court a quo started by describing who Mdluli was and detailed his personality, characterised him in an egregious manner as if he was already convicted of the allegations against him. This characterisation, in my view, negatively influenced the court a quo's evaluation of the manner in which Jiba and Mrwebi handled the Mdluli case," said Shongwe.
He continued that the relevance of this description of Mdluli had not been clearly explained and that the North Gauteng High Court had, in its judgment, refereed to a letter sent by Mdluli to former President Zuma, the Minister of Safety and Security and the Commissioner of Police, which stated that the charges brought against him were a conspiracy.
"I was unable to glean the relevance of quoting from the said letter. In my view the content of the letter was far-fetched and did not establish whether Jiba was a fit and proper person to practise as an advocate," said Shongwe.
Shongwe said she had further explained "that the fraud and corruption charges against Mdluli were withdrawn for purposes of further investigation and that the intention was to reinstate these charges if further incriminating evidence came to hand. The difference of opinion should not and cannot fairly be considered sufficient to conclude that Jiba is not a fit and proper person to remain on the roll of advocates".
"The difference of opinion should not and cannot fairly be considered sufficient to conclude that Jiba is not a fit and proper person to remain on the roll of advocates. 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 but not sufficient enough to be removed from the roll of advocates," he said.
In his dissenting judgment Judge Van der Merwe, with Judge Leach concurring, said that he had read Judge Shongwe's judgment "and find myself respectfully unable to agree with his conclusions in respect of the appeal and cross appeal. In my judgment the appeals of Ms Nomgcobo Jiba (Ms Jiba) and Mr Lawrence Sithembiso Mrwebi (Mr Mrwebi) should fail and the cross appeal of the General Council of the Bar (the GCB) should succeed."
Van der Merwe said the matters he mentioned "extend beyond mere incompetence or unsuitability for the position of ANDPP (Acting National Director of Public Prosecution).
"First, they demonstrate a serious lack of appreciation or disregard of the duty of an advocate to be of assistance to the court and to uphold the administration of justice. The fact that Ms Jiba was a litigant in official capacity in these matters is no excuse. That was all the more reason for her to conduct the litigation with the utmost trustworthiness and integrity. Second, in all three matters Ms Jiba gave untruthful evidence under oath and thus displayed dishonesty and a lack of integrity."
The importance of legal practitioners being scrupulously honest in their dealing with the court had been stressed time and again in South Africa
"In our system of justice the courts should be able to rely absolutely on the word of practitioners, and for that reason there is a serious objection to allowing a practitioner who is untruthful, and deceives or attempts to deceive a court, to continue in practice. What is also relevant, but was not taken into account by the court a quo, is that Ms Jiba has persisted throughout these proceedings with a denial under oath of misconduct on her part. This shows a lack of insight into what she did wrong. In itself it is an important factor which refers adversely on her character, and is a weighty consideration in mitigating against any lesser stricture than her removal from the roll."
The setting aside of the North Gauteng High court decision now paves the way for Jiba to return to the NPA after two years on special leave.
On Tuesday the NPA's spokesperson, Luvuyo Mfaku, reportedly said that the NPA was "pleased with the judgment of the SCA, as it vindicates the rule of law".
But it is not yet over for Jiba.
In December 2017, the North Gauteng High Court set aside the decision by National Prosecuting Authority boss Shaun Abrahams to withdraw charges against Jiba.
In a case brought by Freedom Under Law, the court also ruled that then president Jacob Zuma institute an inquiry into Jiba and Mrwebi's conduct but this was delayed while Tuesday's appeal was pending.
Abrahams withdrew charges of perjury and fraud against Jiba in 2015. The charges were related to her decision to charge Booysen, on charges of racketeering.
In the FUL matter the court ruled that the decision by Abrahams to discontinue the prosecution of Jiba was reviewed and set aside as was the decision of President Zuma not to institute inquiries under section 12(6)(a) of the NPA Act.
Meanwhile, the Constitutional Court is yet to rule on the matter involving former NPA head Mxolisi Nxasana and current head Shaun Abrahams. It has been more than four and a half months since the case was argued and completed.
A cursory glance at the ConCourt website shows that more than 20 judgments are still outstanding, some for over eight months.
Earlier, forensic investigator POS had flagged another familial link between Judge Shongwe and Randburg Magistrate Ndivhuwo Sethusa, who is Shongwe's wife and Edward Zuma's aunt.
O'Sullivan was facing charges of kidnapping, fraud and extortion in Randburg Magistrate's Court. Over the years O'Sullivan had lodged numerous cases against Edward Zuma.
He asked Judge Sethusa to recuse herself - his request was denied.
The investigator told Daily Maverick that Forensics For Justice would be calling for the matter with regard to Jiba and Mrwebi to be held afresh.
Shongwe, said O'Sullivan, should have recused himself from proceedings.
"I am of the opinion that the judiciary has finally been captured. Whilst this is a case that has been driven by the GCB, I believe that we might consider a Con-Court application to set aside the judgment and start de novo, with untainted judges," said O'Sullivan. DM