National director of public prosecutions Shaun Abrahams has launched a shocking attack on his predecessor, Mxolisi Nxasana, as part of an extraordinary effort to protect his controversial deputy, Nomgcobo Jiba.
In court papers Abrahams claims: “The charges against her appeared to be animated by a vendetta conducted by a faction of NPA [National Prosecuting Authority] officials and, in particular, my predecessor …”
Jiba was charged with perjury because she provided false information in an affidavit defending her decision to authorise racketeering charges against KwaZulu-Natal Natal Hawks boss Johan Booysen.
Shortly after Abrahams took over the top job at the NPA, he ordered the case against Jiba to be re-evaluated – although she had already appeared in court – and a decision was taken that she had signed the affidavit in “good faith” and charges were withdrawn, against the wishes of the prosecutors involved.
Abrahams’s affidavit states: “My assessment is that the criminal proceedings were initiated, not in order to see that justice is done, but as part of a vendetta and a stratagem to get rid of Adv[ocate] Jiba. Similarly, so with the NPA’s initiation, under the direction of Mr Nxasana, to have an application brought to have Adv Jiba and other NPA officials struck off the roll of advocates.”
The affidavit was in response to a Democratic Alliance application in the Western Cape High Court to compel President Jacob Zuma to suspend Jiba and order a statutory inquiry into her fitness to hold office. In terms of the National Prosecuting Authority Act, only the president may suspend the most senior members of the NPA.
Last year, Zuma ordered a commission of inquiry into Nxasana on the pretext that the former prosecutions chief had failed to disclose critical information, including convictions for violence when he was a teenager, but the hearing was cancelled when it appeared likely the commission would find in Nxasana’s favour. He was paid out R17-million for the remainder of his contract.
The DA application is similar to another by constitutional lobby group Freedom Under Law and both draw on the application by the General Council of the Bar to have Jiba declared unfit to be an advocate, based on judicial criticism of her conduct in the Booysen matter, as well as in litigation around Zuma ally Lieutenant General Richard Mdluli, the suspended former head of police crime intelligence, and the DA’s attempt to get access to the Zuma “spy tapes”.
The Bar council is also calling for the removal of the NPA’s specialised commercial crime unit head Lawrence Mrwebi and North Gauteng prosecutions boss Sibongile Mzinyathi because of their conduct in the Mdluli matter. Mrwebi was key to the withdrawal of fraud and corruption charges against Mdluli.
Abrahams’s affidavit is remarkable for the way in which he has cleaved himself so snugly to the executive.
For instance, his very detailed reply to the DA application is given on behalf of all three respondents – Zuma, Justice Minister Michael Masutha and himself.
In doing so he makes arguments on behalf of the executive and commits himself to evidence about which he has no personal knowledge and which Zuma, characteristically, does not bother to affirm directly in his brief confirmatory affidavit.
“The letter has not been located”
By way of example, Abrahams purports to refute Nxasana’s claim that he personally delivered a detailed memorandum to Zuma setting out the claims against Jiba and Mrwebi – after Masutha refused to deliver an earlier, similar memorandum sent through his office.
Abrahams says: “Regarding a letter of 12 September 2014, the president … disputes that any such letter was handed to him by Nxasana; the letter has not been located.”
In doing so, he allows Zuma to get away without explaining why he never reacted to Nxasana’s entreaties to suspend and investigate Jiba because of the serious claims against her – requests backed by the inclusion of the opinion provided by the external counsel consulted by the NPA, Pat Ellis.
Zuma only deals with his consideration of the issue after the DA raised the matter in 2015, when he relied on “oral advice” from the justice minister who “summarised the information”, which led the president to conclude it was not necessary to suspend or investigate Jiba.
Abrahams reveals, and makes much of, the fact that after the Bar council had decided to launch an action against Jiba it requested –and the NPA agreed to – a contribution of 75% of the costs, suggesting this was indicative of the council acting as “the cat’s paw” of a faction in the NPA.
Though Abrahams plays up the notion of a “faction” around Nxasana, he ignores evidence that Jiba commanded a faction of her own.
“It has become clear to me that Jiba simply refuses to recognise my authority”
In one document disclosed by Abrahams, Nxasana wrote to Masutha: “I requested reports from Adv Jiba and Adv Mrwebi on the Mdluli corruption matter after the high court judgment … This request was ignored by Adv Jiba and I have received no report to date.
“Furthermore, I must add that, since I took up office, there has been no official handover of matters being dealt with by Adv Jiba, despite repeated requests from me and verbal promises to do so. I have given her ample opportunity and time to correct her behaviour, but it has unfortunately become clear to me that she simply refuses to recognise my authority as head of the NPA.
“Such insubordination is intolerable and makes it very difficult to perform my duties and should be sufficient grounds [for the president to act]. From what I have heard from others, she has been confident for some time that I will be removed from my position soon and that she will be appointed as national director or acting national director. Thus, it appears that she is simply defying my instructions in the belief that I will not be there to hold her to account.”
Abrahams is openly insulting about the crisis Nxasana was facing. He sneers: “Mr Nxasana, having complained of Adv Jiba’s ‘insubordination’, manifests what may fairly be described as a paranoid sensibility.”
Abrahams also repeats a lie. He notes: “In the middle of 2014, it emerged that Mr Nxasana had failed to disclose prior criminal convictions for violent conduct …
“The report about Mr Nxasana’s prior convictions and the ensuing furore … gave rise to a chain of correspondence between the president and Mr Nxasana, the convening of an inquiry in terms of … the NPA Act, and the resignation of Mr Nxasana. The details are not relevant to a determination of this matter.”
Well, they are relevant: they show that Nxasana disclosed his juvenile convictions on his security clearance form in late 2013.
The case is due to be argued in February.
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