National director of Public Prosecutions (NDPP), Mxolisi Nxasana, says a perception is being created that the police are trying to protect his deputy, Nomgcobo Jiba, from prosecution. Nxasana addressed the media at a press conference on Friday morning.
This week, a senior police official served a summons on Jiba related to an investigation into her conduct. But Jiba was not there to receive the summons, which Nxasana tried to deliver to her.
The police denied that the summons was issued, saying their case was not ready to go to court. “It is our view that the NPA, who are also complainants in the matter, jumped the gun when they issued a summons against advocate Jiba,” said SAPS spokesperson Lieutenant-General Solomon Makgale on Wednesday.
Nxasana was asked on Friday if he believed the police were trying to protect Jiba. “I don’t believe that she’s protected. But a perception is created, and it’s unavoidable, that she’s being protected at all costs,” Nxasana said.
Prosecution
He said the idea that a matter could only proceed to court once the investigation was complete was not true. “Matters in court, although I’m not condoning it, are enrolled and they get postponed time and time again, for further investigation. Therefore any suggestion that the matter can only be enrolled once its been investigated is misleading. It’s the responsibility of the investigating officer to make a decision as to whether the matter could be prosecuted,” Nxasana said.
He accused the police of “assuming the role of defence”. Nxasana said Jiba “knows her rights”, and if she felt that the summons issued against her was false, that he hoped charges would be laid and those responsible would be brought to book.
‘Very strange’ saga
Nxasana said the idea that Jiba was “awol” this week did not emanate from the National Prosecuting Authority (NPA). He said that on the morning the summons was issued, he had tried to contact her in an unrelated matter, but she was not at work. But this did not mean she was “absent without leave”. On the whole, Nxasana said he found the entire saga “very strange”.
“I was hoping that the police as our partners would tell us if they are ready to prosecute this matter. The police have now assumed the role of being the defence.
“I can only hope that after all this – the impression created is that the police were merely instructed by the prosecutor to take the summons – that if the conduct of the prosecutor (in Jiba’s matter) is found wanting, which I strongly deny, he’ll have also to face the might of the law.
“And if the police officers and others acted (involved in the investigation into Jiba) unlawfully I expect stern actions be taken against them.”
Summons
Questions still remain about who was responsible for delivering the summons to Jiba. Nxasana said, “I attempted to serve the summons upon her. But my understanding of the law is that that is one of the manners to effect service upon a person. My understanding is that the summons has been served upon her. And if she doesn’t appear in court I have no doubt in my mind that the prosecutor will do what is necessary and the court will be the final arbiter.
“When she refused to accept the summons, I wrote on the summons and witness wrote what happened.
“I’m more concerned about the integrity of the NPA especially because the public looks to and expects the NPA to do its work without fear or favour of prejudice as enjoined by the Constitution,” Nxasana said. “The integrity of the NPA must remain in tact and untarnished.”
Source: Mail & Guardian
Showing posts with label Mxolisi Nxasana. Show all posts
Showing posts with label Mxolisi Nxasana. Show all posts
Friday, March 27, 2015
Saturday, February 7, 2015
Zuma orders inquiry to probe Nxasana fitness to hold office
“The inquiry would look at whether the facts and circumstance surrounding his previous convictions were “constant with the conscientiousness and integrity of an incumbent of the office of the National Director of Public Prosecutions”, according to the terms of reference published on Friday.
It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.
The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).
“[The inquiry will] make findings, report on and make recommendations concerning the matters.
“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”
On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.
In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.
Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.
This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.
Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.
On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.
In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.
Cassim would determine the rules of the enquiry. –Sapa
Source: mail & Guardian
It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.
The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).
“[The inquiry will] make findings, report on and make recommendations concerning the matters.
“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”
On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.
In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.
Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.
This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.
Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.
On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.
In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.
Cassim would determine the rules of the enquiry. –Sapa
Source: mail & Guardian
Friday, February 6, 2015
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
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
Friday, August 15, 2014
NPA boss Nxasana wins battle against suspension - for now
The National Prosecuting Authority boss Mxolisi Nxasana appears to have won round one in his battle against President Jacob Zuma to keep his job.
Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.
Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.
The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.
Anticipating Nxasana’s suspension
The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.
Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.
Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.
Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.
One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.
While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.
“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”
Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.
Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.
Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.
Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.
Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.
“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”
Source: Mail & Guardian
Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.
Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.
The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.
Anticipating Nxasana’s suspension
The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.
Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.
Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.
Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.
One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.
While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.
“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”
Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.
Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.
Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.
Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.
Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.
“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”
Source: Mail & Guardian
Sunday, August 10, 2014
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
“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
Saturday, July 5, 2014
Zuma announces inquiry into NPA boss Nxasana
President Jacob Zuma instituted an inquiry into NPA boss Mxolisi Nxasana, the presidency announced on Saturday.
“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.
Maharaj said details on whether Nxasana would be suspended will be announced in due course.
Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.
Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
Circulating stories
In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”
A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.
Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.
NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.
Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.
“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.
NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.
Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.
Source: Mail & Guardian
“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.
Maharaj said details on whether Nxasana would be suspended will be announced in due course.
Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.
Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
Circulating stories
In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”
A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.
Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.
NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.
Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.
“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.
NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.
Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.
Source: Mail & Guardian
Friday, October 18, 2013
New NPA boss Nxasana seeks clarity on Mdluli case
Mxolisi Nxasana says his decision to wait on an appeal court ruling to reinstate charges against Richard Mdluli is not a delaying tactic.
Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxasana, at the offices of the National Prosecuting Authority (NPA) in Pretoria this week.
Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.
Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.
Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.
His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.
It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.
Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.
As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.
The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.
The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.
In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.
"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.
"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.
"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."
Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.
When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.
"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.
"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."
Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.
"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."
Unclear
Nxasana's reflections on Ngubane are tinged with sadness.
"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'
"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."
Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.
The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.
To this day, it is unclear why he decided to take his life, says Nxasana.
Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.
"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."
After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.
Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.
The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.
His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.
The Richard Mdluli saga
In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.
The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.
Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill
Source: Mail & Guardian
Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxasana, at the offices of the National Prosecuting Authority (NPA) in Pretoria this week.
Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.
Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.
Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.
His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.
It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.
Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.
As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.
The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.
The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.
In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.
"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.
"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.
"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."
Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.
When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.
"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.
"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."
Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.
"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."
Unclear
Nxasana's reflections on Ngubane are tinged with sadness.
"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'
"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."
Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.
The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.
To this day, it is unclear why he decided to take his life, says Nxasana.
Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.
"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."
After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.
Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.
The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.
His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.
The Richard Mdluli saga
In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.
The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.
Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill
Source: Mail & Guardian
Friday, August 30, 2013
Zuma appoints new NPA head
President Jacob Zuma has appointed Mxolisi Nxasana as the new national director of public prosecutions, says the presidency.
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Monday, May 21, 2012
Bill places cap on legal fees
While KwaZulu-Natal law professionals approved certain aspects of the Legal Practice Bill, they are adamant that a complete overhaul of the profession is not the answer.
The bill, which proposes to give Justice and Constitutional Development Minister Jeff Radebe the power to cap legal fees and to abolish bar councils and law societies, has raised eyebrows in the profession. The bill has been on the backburner for more than 10 years, and was again submitted to Parliament last week. If passed in its current form, the bill would absorb the Law Society of South Africa and all bar councils, creating a new South African Legal Practice Council whose role would be to regulate the profession. The proposed council would report directly to the justice and constitutional development minister.
Law professionals in KZN said they have been practising as a self-regulated profession for generations within regulations set out by the various bar councils and law societies. The president of the KZN Law Society, Mxolisi Nxasana, said although he fully supported the government’s call for a unified legal system, he was critical of the profession being controlled by the state. “The bill, in essence, is very useful; however, regulation should be left to the legal profession itself. It should not be controlled by the government,” Nxasana said.
Nxasana also said the capping of fees would be in direct conflict with the Competition Act. He said one of the criticisms of the current system was that clients who wished to employ the services of an advocate had to do so via an attorney. The attorney then briefed the advocate at a cost to the client, he said. If the bill was passed, Nxasana said, the client would be able to approach an advocate directly, thereby cutting costs.
Nxasana said at the moment there were different rules for each province. “If the aim is to unify all the rules, so that the same rules are applicable throughout the country, I don’t see why the government would want to take over legal practitioners, as long as the rules are in line with the Attorneys Act,” he said. Responding to Justice Minister Jeff Radebe’s comments about legal fees in South Africa being higher than those in cities such as New York and Washington DC, Nxasana said: “Our legal fees are not that high, and it goes back to the issue of self-regulation.” Another concern regarding the bill was the clause allowing for ministerial appointees to serve on the council.
Nxasana said he was concerned the bill would allow Radebe to appoint non-lawyers to serve on the council. A Durban attorney said many in the legal fraternity believed that the bill was drafted in “haste”. “The bill should have more input from legal professionals. Whatever input has been given thus far has not been given serious thought,” he said. He also said if there were certain aspects the minister wanted to raise, such as candidate attorneys providing community service, he would be for it. He said he welcomed the idea because of the shortage of access to legal services, especially in rural areas. However, these concerns did not justify an overhaul of the profession. Regarding the capping of legal fees, the attorney said it would be impossible. “If the government caps legal fees – for drafting wills, for example – would banks also be capped, seeing that they also offer the service?” he asked. He said there were currently mechanisms in place to regulate legal fees.
Source: Iol
The bill, which proposes to give Justice and Constitutional Development Minister Jeff Radebe the power to cap legal fees and to abolish bar councils and law societies, has raised eyebrows in the profession. The bill has been on the backburner for more than 10 years, and was again submitted to Parliament last week. If passed in its current form, the bill would absorb the Law Society of South Africa and all bar councils, creating a new South African Legal Practice Council whose role would be to regulate the profession. The proposed council would report directly to the justice and constitutional development minister.
Law professionals in KZN said they have been practising as a self-regulated profession for generations within regulations set out by the various bar councils and law societies. The president of the KZN Law Society, Mxolisi Nxasana, said although he fully supported the government’s call for a unified legal system, he was critical of the profession being controlled by the state. “The bill, in essence, is very useful; however, regulation should be left to the legal profession itself. It should not be controlled by the government,” Nxasana said.
Nxasana also said the capping of fees would be in direct conflict with the Competition Act. He said one of the criticisms of the current system was that clients who wished to employ the services of an advocate had to do so via an attorney. The attorney then briefed the advocate at a cost to the client, he said. If the bill was passed, Nxasana said, the client would be able to approach an advocate directly, thereby cutting costs.
Nxasana said at the moment there were different rules for each province. “If the aim is to unify all the rules, so that the same rules are applicable throughout the country, I don’t see why the government would want to take over legal practitioners, as long as the rules are in line with the Attorneys Act,” he said. Responding to Justice Minister Jeff Radebe’s comments about legal fees in South Africa being higher than those in cities such as New York and Washington DC, Nxasana said: “Our legal fees are not that high, and it goes back to the issue of self-regulation.” Another concern regarding the bill was the clause allowing for ministerial appointees to serve on the council.
Nxasana said he was concerned the bill would allow Radebe to appoint non-lawyers to serve on the council. A Durban attorney said many in the legal fraternity believed that the bill was drafted in “haste”. “The bill should have more input from legal professionals. Whatever input has been given thus far has not been given serious thought,” he said. He also said if there were certain aspects the minister wanted to raise, such as candidate attorneys providing community service, he would be for it. He said he welcomed the idea because of the shortage of access to legal services, especially in rural areas. However, these concerns did not justify an overhaul of the profession. Regarding the capping of legal fees, the attorney said it would be impossible. “If the government caps legal fees – for drafting wills, for example – would banks also be capped, seeing that they also offer the service?” he asked. He said there were currently mechanisms in place to regulate legal fees.
Source: Iol
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