In the latest move in the high stakes battle between the country’s most senior prosecutors, the National Prosecuting Authority hasdecided to charge Lawrence Mrwebi, the controversial head of the NPA’sspecialised commercial crimes unit.

The prosecuting authority confirmed to amaBhungane onThursday that Mrwebi – the man responsible for the withdrawal of corruptioncharges against former crime intelligence boss Richard Mdluli – is officiallyfacing prosecution after the decision was taken last week. The NPA said thedocket was opened in February last year.

• See also: Zuma asks Nxasana to defend himself

The charges against Mrwebi relate to a case in whichhe both allegedly interfered and had a conflict of interest.

The NPA would not confirm the exact charges, as Mrwebihas not yet appeared in court, but it did confirm his case is linked to aninvestigation into the awarding of a 2006 NPA security contract.

Mrwebi told amaBhungane that he had no idea of thepending prosecution against him, although the NPA said it had informed him.

AmaBhungane has previously reported on Mrwebi’salleged attempts in December 2011 to interfere with a search and seizureoperation being carried by the Hawks at the home of one of his colleagues andfriends, Terence Joubert. Joubert worked for the NPA’s security and riskmanagement unit in KwaZulu-Natal.

Regular feature in power struggles

But criminal charges are not the only thing Mrwebimight need to gear up for. As Glynnis Breytenbach’s former boss, Mrwebi has beena regular feature of the highly publicised power struggles being fought withinthe NPA.

These appear to have gained momentum since August lastyear, when president Jacob Zuma appointed KwaZulu-Natal lawyer Mxolisi Nxasanaas the national director of public prosecutions (NDPP). Zuma was forced, bycourt order, to appoint a permanent NPA head as it had been without one foralmost two years.

The appointment of the then relatively unknown Nxasanaseemingly caused waves at the prosecuting authority’s Silverton head office.Nxasana replaced Nomgcobo Jiba after she had been acting head for 18 months.

Jiba, another prominent official whose name hasappeared in the media alongside allegations relating to the NPA’s internalmachinations, has a history with both Mrwebi and Mdluli, that began in 2007when the two men vouched for her during a Labour Court fight she had with theNPA.

And it appears the three might again find themselveshaving to defend their corner.

AmaBhungane learnt this week that a memo, sent fromthe NDPP’s office on Tuesday to justice minister Michael Masutha, recommendedthat an inquiry into Nxasana’s fitness to hold office be expanded to includescrutinising the suitability of Mrwebi and Jiba.

Jiba and Mrwebi have been at the centre of the battleover the withdrawal of charges against Mdluli and have received judicial rebukefor their actions.

Correspondence

Although both Jiba and Mrwebi denied any knowledge ofthe request to the justice minister, justice spokesman Mthunzi Mhaga told amaBhungane yesterday: “I can confirm that indeed the Minister has receivedcorrespondence from Acting NDPP Willie Hofmeyr on 29 July 2014. He is studyingsame but we are not at liberty to give more details as he is still studyingit.”

And in response to whether a request had been put toMasutha regarding an inquiry into Jiba and Mrwebi, NPA spokeswoman BulelwaMakeke said: “We do not wish to comment on this matter as we regard it as aninternal matter. Save to say there are recommendations that have been referredto the Minister of Justice and Correctional Services”.

The Presidency announced on Friday that Zuma hadwritten to Nxasana , informing him that details of the inquiry into his fitnessto hold office were still being finalised and giving him an opportunity to makerepresentations as to why the President should not suspend him.

Zuma first announced the inquiry nearly a month ago. It followed allegations that Nxasana was refused topsecurity clearance after he failed to disclose that he had killed a man when hewas 18. He was acquitted for acting in self-defence. But there were also aseries of media leaks about other allegations of aggressive behavior.

Meanwhile the NPA has also announced the appointmentof an external “fact-finding committee”, led by retired Constitutional Courtjudge Zac Yacoob to look into the allegations and counter-allegations plaguingthe institution.

The committee will probe “the involvement ofemployees, including senior members, of the NPA in the leaking of informationto the media and other interested parties as well as other unethical andunprofessional conduct”.

The terms of reference for the committee suggest itwill also probe the behavior of Mrwebi and Jiba – as well as the allegationsand counter-allegations involving their perceived ally, Prince Mokotedi.

Suspicion of leaking

Mokotedi, the head of the NPA’s Integrity ManagementUnit, was suspended last month in connection with the suspicion that he leakeda document detailing the findings of an IMU investigation of former specialisedcommercial crime prosecutor Glynnis Breytenbach.

Breytenbach was central to the battle with Jiba andMdluli over fraud charges her specialized commercial crime unit sought to bringagainst Mdluli, and successfully defended disciplinary charges brought againsther by Jiba last year.

Mokotedi led an investigation into new and damaging conflict of interest claims against her, but his internal report – the one later leaked – coincided with her resignation from the NPA. She left the prosecution service to join the Democratic Alliance and is now an MP.

Mokotedi this week embarked on a media campaign aheadof his own resignation – slated for yesterday – in which he claimed that theNPA was divided along pro-Zuma and anti-Zuma lines.

He dubbed the anti-Zuma faction as the “Zille faction”and claimed it included acting NDPP Willy Hofmeyr as well as the team led byGerrie Nel that investigated and prosecuted former police commissioner JackieSelebi.

The terms of reference of the Yacoob committee arewide enough to encompass Mokotedi’s claims.

Mrwebi meanwhiletold amaBhungane that he would “welcome” an inquiry into his fitness for hisjob.

Inquiry a blessing

He said: “If I wasspeaking for myself, I would say that it is a blessing (to have an inquiry) sothat all these rumours could be put to rest. I would not be against that. Iwould welcome an inquiry into me – to find out where does it come from, that Iam part of a faction. What did I do? And to find out what the facts are.” Jibadid not want to comment.

AmaBhungane has been reliably informed that issuesraised as being of concern to the NDPP’s office relate to Jiba and Mrwebi’sroles and decisions during several highly publicised cases.

These include the so-called Cato Manor “hit squad”case and the subsequent suspension of KwaZulu-Natal Hawks boss Johan Booysen aswell as the legal battles over the withdrawal of criminal charges againstMdluli.

Mdluli is set to appear in court August 11 to facecharges relating to the kidnapping of Oupa Ramogibe, although he will not facecharges relating to Ramogibe’s murder.

A senior NPAsource, who asked not to be named, told amaBhungane that the issues central toMrwebi would relate to the scathing findings of high court Judge John Murphy,in his ruling last September on an application brought by lobby group FreedomUnder Law (FUL) to force the police and the NPA to reinstate criminal chargesagainst Mdluli.

Among the issues raised by FUL in its case, which it later won,was whether Mrwebi followed a transparent and legal process in deciding towithdraw corruption and fraud charges against Mdluli.

Murphy wassevere on this particular matter. “The conduct of the Special DPP [Mrwebi], again, Iregret, as evidenced by this behaviour, falls troubling below the standardexpected from a senior officer of this court.”

Murphy also found that Mrwebi’s decision to withdrawMdluli’s charges was “illegal, irrational, based on irrelevant considerationsand material errors of law, and ultimately so unreasonable that no reasonableprosecutor could have taken it.”

No holding back

Mrwebi claimed at the time that after he had receivedrepresentations from Mdluli’s lawyers, at the end of 2011, the investigationneeded to be handled by the inspector general of intelligence. He informedMdluli’s lawyers that the charges would be withdrawn before he had consultedthe prosecutors in the matter.

Judge Murphy did not hold back either when it came to Jiba’sbehaviour, the NPA’s acting head at the time. Murphy found that her andMrwebi’s conduct was “unbecoming of persons of such high rank in the public service … Theattitude of the respondents signals a troubling lack of appreciation of theconstitutional ethos and principles underpinning the offices they hold.”

And in afinal hammer blow, Murphy found that “the NDPP and the DPPs have notdemonstrated exemplary devotion to the independence of their offices, or theexpected capacity to pursue this matter without fear or favour … Furtherprevarication will lead only to public disquiet and suspicion that thoseentrusted with the constitutional duty to prosecute are not equal to the task.”

In itsjudgement this year, on an appeal brought against Murphy’s ruling by thepolice, Mdluli and the NPA, the Supreme Court of Appeal agreed with Murphy’sfindings with regards to Mrwebi’s actions in withdrawing the charges.

The SCAjudgement noted, among other points, that: “The only inference is thus thatMrwebi’s decision was not in accordance with the dictates of the empoweringstatute on which it was based…”

Cato Manor

The casethat could potentially cause the most damage to Jiba is the arrest andprosecution of members of the now-disbanded Cato Manor violent crimes police unitin 2011, following a front-page article in the Sunday Times. Thenewspaper reported that the unit, under former Hawks boss Johan Booysen’swatch, had been acting as a ‘hit squad’.

Earlierthis year however, Nxasana abandoned an NPA appeal of a February KwaZulu-NatalHigh Court ruling, which set aside all charges against Booysen.

Jibacame under fire in the court’s ruling. She was effectively accused of beinguntruthful in claiming her decision to approve Booysen’s charges wasbased on “sworn evidence”.

JudgeTrevor Gorven noted: “In response to Mr Booysen’s assertion of mendacity onher part, there is a deafening silence. In such circumstances, the court isentitled to draw an inference adverse to the NDPP.”

Dismissing her decision he added: “I can conceive of no test forrationality, however relaxed, which could be satisfied by her explanation. Theimpugned decisions were arbitrary, offend the principle of legality and,therefore, the rule of law and were unconstitutional.”

In the original wording of this story it was suggested that Adv Glynnis Breytenbach had reached a settlement with the NPA on her departure that included a commitment not to pursue new allegations against her delivered in a report by the NPA’s Integrity Management Unit.
Breytenbach has indicated that she would not have and did not in fact reach any settlement that would preclude the NPA acting on those allegations, if justified. The settlement related only to outstanding labour litigation that arose from the NPA’s earlier disciplinary action against her in which she was found not guilty. amaBhungane regrets the error.

The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.