JZ ignores damning NPA report

Recommendations against the key actors in the Richard Mdluli fraud case have gone unheeded.

The report of an inquiry by retired Constitutional Court Justice Zak Yacoob into the turmoil at the National Prosecuting Authority (NPA) has made damning findings against former acting prosecutions head Nomgcobo Jiba and her key ally, specialised commercial crimes unit head Lawrence Mrwebi.

The report, sent to President Jacob Zuma in October, confirms previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.

Until this week Zuma had failed to respond to the Yacoob report’s recommendations (that Mrwebi should be suspended and an inquiry set up into improprieties at the NPA), reinforcing perceptions that Zuma is protecting his allies in the prosecution service.

On Thursday, after three months of increasing drama and infighting, the presidency announced that Zuma had established an inquiry into the NPA. But that enquiry will not follow the lines recommended by Yacoob. Instead it will deal with the fitness of Mxolisi Nxasana to be the national director of the NPA.

The precise terms of reference for the inquiry are due to be gazetted this Friday, February 6.

The Yacoob report, which included an investigation by advocate Kenneth Manyage, was conducted at the request of Nxasana, the very national director who must now face a presidential inquiry.

Unlike the inquiry now to be instituted into Nxasana, the Yacoob report has no legal force, but strengthens an earlier formal request by Nxasana to Zuma urging him to suspend Jiba and Mrwebi pending the investigation of their alleged perjury by lying under oath.

Both remain in office. NPA ­spokesperson Velekhaya Mgobhozi confirmed that Zuma, who alone has the power to suspend prosecutors at this level, has never responded to the request.

Jiba and Mrwebi declined to co-operate with Yacoob’s inquiry and Jiba questioned its mandate and lawfulness.

The NPA confirmed last week that the acting head of the Hawks, Major General Berning Ntlemeza, has requested the return of the perjury dockets of Jiba, Mrwebi and Sibongile Mzinyathi, another senior prosecutor accused of altering his evidence in the Mdluli matter.

Ntlemeza’s spokesperson has denied he personally intervened to retrieve the docket, saying “he has the right to ask for progress on any matter”.

The move blocks any formal decision by the NPA on whether to prosecute the trio.

Nxasana inquiry

The inquiry into the fitness of Nxasana comes hard on the heels of the suspension of Hawks commander Anwa Dramat, and what critics see as a political purge at the South African Revenue Service. The move appears to support the view that Zuma is moving against his perceived opponents across a broad front.

The inquiry into Nxasana was first announced more than six months ago, but appeared to have been suspended pending negotiations between Zuma and Nxasana.

Its formalisation now signals a new phase in the increasingly dirty infighting at the NPA. Two independent sources familiar with the matter told amaBhungane that Jiba and Mrwebi were the key stumbling blocks to a settlement between the president and the head of the NPA.

One said: “Nxasana wrote to Zuma and offered to go if Jiba and Mrwebi were removed. He told the president: ‘If they are out, I will go immediately.’

“I suspect he has not changed his position, which is why the president is now proceeding against him.”

Zuma first announced an inquiry into Nxasana in July last year after it emerged he was denied security clearance, purportedly because he did not disclose that he had killed a man at the age of 18.

Nxasana said he was acquitted of the 1985 murder and insisted the revelations about his past were part of factional machinations by his NPA rivals and politicians out to get rid of him.

Until Thursday’s announcement, Zuma had not announced the inquiry’s terms of reference and, following an urgent court application by Nxasana, did not suspend him.

Long shadow

The emergence of the Yacoob report has underscored the central role of the Mdluli saga in the battle for control of the NPA.

It reserves most of its criticism for Mrwebi, a special director appointed by Zuma to head the specialised commercial crime unit in the office of the national director.

The report notes that even before his appointment was gazetted in November 2011, Mrwebi had received hand-delivered representations from Mdluli’s lawyers.

Mdluli had been charged for alleged kickbacks he received in relation to vehicles bought using the crime intelligence division’s secret fund.

The charges emerged from a broader Hawks investigation of abuses of the fund and was under the direction of Pretoria commercial crimes unit boss Glynnis Breytenbach and her divisional director, Mzinyathi.

At the time Mdluli was also fending off a Hawks reinvestigation of murder relating to the unsolved 1999 killing of Mdluli’s former love rival, Oupa Ramogibe.

Mrwebi’s move

Following the representations on the corruption case, Mrwebi determined that the matter could only be investigated by the inspector general of intelligence – despite the latter disputing this interpretation – and instructed Breytenbach to withdraw the charges.

Along the way, Breytenbach appealed in vain to Jiba to review Mrwebi’s decision. She blamed her later suspension and protracted disciplinary battles with the NPA on her determination to prosecute Mdluli. She has since resigned and joined the Democratic Alliance.

In overruling Breytenbach and Mzinyathi, the Yacoob report finds that Mrwebi flouted legislation, stating that such decisions can only be taken “in consultation with” the divisional director.

At Breytenbach’s disciplinary hearing Mzinyathi gave evidence that he had disagreed with Mrwebi’s decision to withdraw charges against Mdluli.

However, when lobby group Freedom Under Law challenged decisions to withdraw murder and corruption charges against Mdluli, Mzinyathi provided an affidavit that appeared to suggest he had agreed with Mrwebi. It is that shift that forms the basis of the perjury investigation against him.

Short shrift

The Yacoob report gives short shrift to these machinations.

“It is trite law that the phrase ‘in consultation with’ means with the concurrence of,” it says. “Yet Mrwebi, for reasons that are difficult to ­comprehend, chose either not to understand this or to ignore the provision and withdraw charges against Mdluli in circumstances where Mr Mzinyathi did not agree with this course.

“Mr Mrwebi’s evidence at Ms Breytenbach’s disciplinary inquiry is telling … He veered, with some instability, among three possibilities: there was substantial agreement, it was 50-50, or no agreement at all …

“His evidence at the disciplinary hearing left a great deal to be desired. He displayed much arrogance, contradicted himself repeatedly and, in material respects, demonstrated considerable lack of understanding of the law and of legal processes.

“In our view his evidence was ­certainly not becoming of a person holding the position of special director. He certainly did not come across as a man of credibility or integrity … In our view there are serious criticisms of Mr Mrwebi which must be acted upon.”

Yacoob on Mdluli

Turning to the Mdluli cases, the Yacoob report notes: “We are ­convinced, having looked at the dockets, that there was at the very least a prima facie case against ­Major General Mdluli on the fraud and corruption as well as the murder and related charges. The fact they were withdrawn … are both matters of grave concern.”

In a clear reference to the perjury allegations against Jiba, Mrwebi and Mzinyathi, the report noted: “In regard to certain criminal charges against senior NPA personnel: we confirm our view that there is a prima facie case in all of them.

“Mr Mrwebi has got a great deal to answer for … the courts have accused him, with justification, of not telling the truth, not being fully frank with the court …

“There is reason to believe he lied under oath and did not respect the court.

“Mzinyathi, too, lied under oath. Initially without qualification he stated that he had not agreed to the withdrawal of fraud and corruption charges. In his later affidavit he virtually (but not quite) said that he had agreed.

“Jiba said in the high court that she knew nothing about the withdrawal of these cases and the court found it difficult to believe her. We agree … we find it quite incredible that she did not know about these cases.”

Mrwebi told amaBhungane this week that it was the first time he had heard the allegations contained in the Yacoob report. “I have not seen that report, so I can’t comment on these allegations.”

Jiba said she could not comment on Yacoob’s findings because she had never seen the report and “I don’t even know under what mandate or legal prescripts Judge Yacoob acted”.

Asked why she refused to be interviewed by Yacoob, Jiba said: “I could not subject myself to something that is unlawful … you can’t just jump for people. People can’t just jump and say we are now investigating you. There are processes you have to follow.

“And in as much as people want to appear as if they are protecting the rule of law, the rule of law must then be applicable to everybody.”

Mzinyathi could not be reached for comment.

Source: mail & Guardian

Criminal charges laid against senior NPA officials

Criminal charges have been laid against three National Prosecuting Authority senior officials, the prosecuting authority confirmed on Sunday.

“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.

City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.

Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.

Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa

Source: Mail & Guardian

Senior National Prosecuting Authority (NPA) staff could be charged

The National Prosecuting Authority (NPA) has been aware for some time that Commissioner Mdluli from South African Police Service (SAPS) has been conducting an investigation in a matter involving some of its senior management.

However, the NPA is extremely concerned to learn from papers filed in a labour dispute that members of its senior management, including the acting head of the NPA Advocate Mokotedi Mpshe, are regarded as suspects in this matter.

There has been a considerable communication and meetings between Advocate Mpshe and Commissioner Mdluli in this regard, and no indication has been given to him that he is a suspect.

The acting head of the National Prosecutions Service, Advocate Sibongile Mzinyathi, has co-operated with SAPS. He has also not been informed that he is a suspect, nor was he warned as a suspect as required by law when he was interviewed about the matter.

An added concern is that an intercepted telephonic conversation of Advocate Leonard McCarthy, former head of the Directorate of Special Operation (DSO), appears to be the basis for this investigation. As far as the NPA is aware, it is a criminal offence to make a legal interception public as has been done in the labour dispute. It has also not been made clear to those interviewed whether this interception was made in terms of the law.

While the NPA is willing to co-operate in any investigation, it is very concerned about whether this matter is being handled in good faith and will seek to raise its concerns as soon as possible with the Minister of Safety and Security, Mr Nathi Mthethwa, and the acting National Police Commissioner Tim Williams.

The NPA regards the SAPS as a partner in the fight against crime, and respect its mandate to prevent and investigate crime. We trust that the existing inter-agency co-operation will assist in order to have our concerns addressed.

Enquiries:
Tlali Tlali
National Prosecuting Authority Spokesperson
Cell: 082 333 3880

Issued by: National Prosecuting Authority
16 February 2009