Advocate Jiba’s constitutional duty to fight Ramaphosa’s political shenanigans

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By Paul Ngobeni

There is a bitter irony in Advocate Jiba’s removal saga. Jiba is constitutionally obligated to fiercely fight Ramaphosa’s decision to remove her as Deputy NDPP. That fight must wind its way through Parliament and ultimately the courts. The ConCourt’s Nxasana judgment eloquently elaborated on this duty to resist unconstitutional executive action. Essentially, all constitutional office holders with constitutionally enshrined independence are legally obligated to defend their or the independence of their institution against encroachment by both the legislative and executive branches in whatever form.

Officials such as Jiba may not cave into unlawful executive action or demands which threaten their decisional independence or security of tenure. Jiba is likely to succeed if only she adopts a lean and mean legal strategy that exposes the political machinations of President Ramaphosa and his insouciance towards his constitutional obligations.

As the ConCourt elucidated in EFF v. Speaker of the National Assembly, the President “is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed.” 

A President who appoints a retired judge subject to automatic disqualification to decide a matter involving the removal of a senior prosecutor demonstrates total indifference to effective governance. He flouts his obligation to uphold, defend and respect the Constitution.

A President who is mired in ANC factional battles and carries out vendettas against his real and imagined political enemies is certainly failing in the duty of promoting national unity and reconciliation. His paranoid pursuit of perceived pro-Zuma public servants in key state institutions evinces recklessness in the extreme.

The ConCourt reminded us that “all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him.” But he must carry out these duties within the law.

Here is Jiba’s argument to effectively expose the constitutionally infirm decisions of Ramaphosa. A starting point is Ramaphosa’s unseemly dealings with the Mokgoro family. Ramaphosa picked on his political enemy in the North West, Premier Supra Mahumapelo, unlawfully removed him and appointed Job Mokgoro as Premier. The Gauteng High Court in Pretoria declared Ramaphosa’s actions unlawful and ordered Mahumapelo’s immediate reinstatement to his office and resumption of his responsibilities as ANC Provincial chairperson. Undeterred, Ramaphosa’s ANC defiantly launched an appeal and embarked on dilatory tactics and procedural manoeuvring to avoid compliance with the Court order.

Not surprisingly when Ramaphosa needed Jiba’s head on a platter he reached further into the Mokgoro household and appointed Mokgoro’s wife and retired judge to execute the task. It did not matter to Ramaphosa that Judge Mokgoro was subject to automatic disqualification. Mokgoro was on the advisory council of the Council for the Advancement of the South African Constitution (CASAC) a self-styled civil society body to promote the constitution and guard against corruption, greed and patronage in the state.[1] CASAC made adverse submissions during the Jiba inquiry and obviously influenced the outcome. Constitutionally Mokgoro’s automatic disqualification is a big deal.

The rule of law that Ramaphosa and the ANC pay lip service to certainly requires that a judge subject to automatic disqualification not preside over a matter. A good example is the U.K. case of R v Bow Street Metropolitan Stipendiary Magistrate & others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 which  concerned an application by former Chilean dictator Pinochet, to set aside an order made for his arrest on various crimes against humanity (whilst head of state), on international warrants issued by Spanish judicial authorities. The question before the House of Lords was whether Senator Pinochet was entitled to immunity. The majority, Lord Nicholls and Lord Steyn (who each delivered speeches), with whom Lord Hoffman agreed, held that Senator Pinochet was not entitled to immunity. Before the hearing of the appeal, Amnesty International (AI) sought and obtained leave to intervene. It subsequently emerged that Lord Hoffmann was a Director and Chairperson of Amnesty International Charity Limited (AICL), a registered charity incorporated to undertake those aspects of the work of Amnesty International Limited (AIL), which are charitable under UK law. In considering whether Lord Hoffman should have recused himself, Lord Browne-Wilkinson stated:

My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion, if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity. Indeed, so much I understood to have been conceded by Mr Duffy.

 Can it make any difference that, instead of being a direct member of AI, Lord Hoffmann is a director of AICL that is of a company which is wholly controlled by AI and is carrying on much of its work? Surely not. The substance of the matter is that AI, AIL and AICL are all various parts of an entity or movement working in different fields towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewarts famous dictum is to be observed: it is “of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done” (see R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234).‟

Mokgoro had a long association with CASAC which was one of the witnesses against Jiba and this automatically disqualifies her.  Accordingly, her report recommending Jiba’s removal should have no legal status. Civilized nations have recognized that if the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. It is a principle of natural justice that no-one should be a judge in his own cause (nemo judex in causa sua). An entire court judgment in the Pinochet case was set aside because of the automatic disqualification rule. Mokgoro’s report is equally tainted. Obviously, these hallowed principles matter little to a President and his ANC hell-bent on a political vendetta, witch-hunts and fighting factional battles.

Another potent argument for Jiba is whether Ramaphosa’s Gadarene rush to initiate an inquiry into matters pending before the courts were designed to hamstring Parliament in light of Rule 89 of the National Assembly Rules (the Sub Judice Rule.) which provides that no “member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.” Simply stated as long as the Jiba appeals are pending before the Constitutional Court parliament may not deliberate on the merits of the High Court judgments on the “Booysen” and Mdluli matters relied upon in Mokgoro report. Ramaphosa expects Parliament to rubber-stamp his removal decision without debating the merits or demerits of the removal.

The NPA Act envisages a role for parliament in the removal process for the Deputy NDPP – the President’s removal action is subject to ratification by Parliament. Most importantly, Parliament shall, within 30 days after the message of removal has been tabled in Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of the National Director or Deputy National Director so removed, is recommended. The President “shall restore the National Director or Deputy National Director to his or her office if Parliament so resolves.” Until the Concourt decides Parliament would not be able to meet the statutory 30 days deadline. A duty-conscious President would know that intuitively. Obviously, Ramaphosa knew quite well that so long as the Jiba appeal matters are pending before Constitutional Court parliament would be prohibited from discussing the merits of all the judgments relied upon in the Mokgoro report. But there is more to Ramaphosa’s political shenanigans.

Both Mokgoro and Ramaphosa have flagrantly violated Section 165 of our Constitution which expressly states that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies” In his letter of removal, Ramaphosa relies on the “Booysen” and Mdluli matters on which the courts have already ruled in Jiba’s favour. The allegations against Jiba stemming from the “Booysen” matter were soundly rejected by a Full Court in the matter of GCB v Jiba and Others (23576/2015) [2016]. The Court expressly ruled that it could not “find any mala tides and or ulterior motive in the authorisation by Jiba as contemplated in POCA.”  The SCA fully agreed with the lower court’s ruling  on the “Booysen matter” and poignantly ruled as follows:

[10] … In a nutshell, Booysen alleged that Jiba was ‘mendacious’ when she asserted that she considered statements together with other information in the docket before she took the decision to charge him. This allegation was further exacerbated by the negative remarks of Gorven J who presided in the Booysen matter when he drew an inference that none of the information upon which Jiba relied linked Booysen to the offence in question. The court a quo found that ‘[i]t suffices, for now, to conclude on [the] Booysen matter by stating that no case has been made for removal or suspension from the roll of advocates’… I share the sentiment expressed. …. The court a quo could not find ‘any mala fides and or ulterior motive in the authorisation by Jiba as contemplated in POCA’.

It would be unlawful for either the President or Parliament to simply side-step the favourable SCA ruling by preferring the supposedly adverse Mokgoro conclusions and recommendation that Jiba be removed. Under this Section 165, the President is not only obligated to respect the judicial authority and independence of the courts but he is also required to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. This he has already failed to do.

Another matter inextricably linked with Mokgoro’s gross distortion of law and facts is the “Mdluli” matter which was resolved by the SCA in National Director of Public Prosecutions and others v Freedom Under Law 2014 (4) SA 298. The SCA confirmed that Jiba did not make any decision to withdraw the charges of fraud and corruption against Mdluli on or about 5 December 2011 as she had not yet been appointed ANDPP at that time.

Advocate Mrwebi made the decision to withdraw the charges of fraud and corruption against Mdluli on or about 5 December 2011 based on insufficient evidence and his view that the charges were brought for an ulterior motive. In point of fact, Mrwebi’s decision to withdraw the Mdluli charges was made more than three weeks before Jiba’s appointment Acting NPA Head on 28 December 2011. The SCA confirmed that Mrwebi was the sole decision-maker with full authority to make the decision – by law, he neither needed nor obtained Jiba’s concurrence before making the decision. Ramaphosa has joined the chorus of those who have ignored extant SCA court judgment to hawk the false narrative that Jiba used her authority to shield Mdluli who was linked to former President Zuma.

Parliament must carefully navigate the Kafkaesque world created by Ramaphosa’s political machinations. As the Concourt ruled, the National Assembly, and by extension Parliament, ‘bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed.” It is unfathomable that the executive and legislature would knowingly violate the law and defy the judiciary at the same time. Parliament must telegraph a loud and clear message – the President has no blank cheque to pick and choose his political targets.

[1] See, SA Constitution : A non-racial effort; Business Day | September 18, 2010 Franny Rabkin; https://www.atlanticphilanthropies.org/news/sa-constitution-non-racial-effort