By Paul Ngobeni – Legal Analyst
In firing Jiba as Deputy National Director of Public Prosecutions, Ramaphosa made history — albeit of a dubious kind. He flagrantly violated an explicit court order, transgressed the limits of his constitutional powers and, above all else messed with a wrong woman. Ramaphosa assumed, incorrectly as it turned out, that if he fired Jiba the next step would be a vote in parliament where the ANC MPs would hold the party line, rubber-stamp his decision, and his firing of Jiba would be a sure thing. Unfortunately, Ramaphosa’s calculus contains a significant error — namely, the assumption that Jiba would sheepishly submit herself to a tainted process amidst revelations that Ramaphosa’s enormous wealth and donations from his filthy rich white supporters were used to bribe voters at Nasrec and some opposition MPs later.
Inspired by her victory at the Constitutional Court Jiba hit back rapidly and placed her dismissal case squarely before the judiciary. The court, not the compromised politicians will turn the spotlight on Ramaphosa’s egregious constitutional violations which would provide a solid basis for his impeachment.
For starters, Ramaphosa deliberately violated an extant court order in Freedom Under Law v NDPP 2018(1) SACR 436 (GP) which expressly stated he was to await the outcome of the GCB appeals to the SCA and Constitutional Court before he could suspend Jiba or institute a fitness inquiry. It stated: “The President is directed to institute disciplinary inquiries against Jiba and Mrwebi into their fitness to hold office in the National Prosecuting Authority and to suspend them pending the outcome of those inquiries. It is further ordered that the implementation of this specific order be suspended pending the outcome of their ultimate appeal of the GCB judgment.” Ramaphosa has violated some important tenets of the Constitution.
The first is the obligation under Section 165(4) of the Constitution requiring that organs of state “through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the courts;” the second is the principle stated in Section 165(5) that an “order or decision issued by a court binds all persons to whom and organs of state to which it applies.” Ramaphosa frequently boasts that he wrote the constitution but his ignorance of the same constitution is monumental: he seems unaware that the court’s rationale for ordering a suspension of its orders was precisely to prevent the executive from pre-empting judicial decisions or acting in a manner that would undermine court judgments and rights of litigants. As predicted, Jiba won virtually all her matters being litigated but that became a hollow victory which the executive blithely ignored.
In fact, Ramaphosa’s views on stratagems the executive should utilize to avoid binding court decisions are malicious. Upon hearing that Jiba had, contrary to the wishes of hate-filled whites, won her case at the SCA Ramaphosa acted with unseemly alacrity to initiate the disciplinary inquiry despite the above order and being informed of an appeal to the Concourt. For some inexplicable reasons, Ramaphosa was unwilling to allow the court process to take its proper course to ultimately resolve any factual and legal disputes at the core of his envisaged “fitness” inquiry against Jiba.
That the head of the executive chose to institute a parallel inquiry to deal with sub judice matters being litigated evinces the President’s utter disrespect for the constitutional separation of powers principle, disrespect for the judiciary and contempt for the rule of law. As it turned out, the SCA judgment in Jiba’s favour rejected all of the factual underpinnings of the accusations against her and all accompanying legal conclusions. Ramaphosa was bound by Section 165 to scrupulously comply. Accordingly, his entire decision is invalid on the basis of the legality principle. But that is not all.
Ramaphosa also deliberately violated Section 166 of the Constitution by relying on adverse lower courts judgments overturned on appeal. Lower courts are bound by decisions of the courts superior to them. In other words, a court must follow the decisions of the courts superior to it even if such decisions are clearly wrong as Didcott J stated in Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N). Ramaphosa has perversely subverted the doctrine by preferring adverse High Court judgments over SCA and Concourt rulings favourable to Jiba. An egregious example is that the SCA ruled in Jiba v. GCB that it “cannot find any mala fides and or ulterior motive in the authorisation by Jiba” in the prosecution of Booysen. Perversely, Ramaphosa endorsed a process where the criminal accused Booysen was called as a witness before the Mokgoro panel to impugn the SCA judgment and argue that there was indeed “mala fides and or ulterior motive in the authorisation by Jiba.” That is simply unprecedented. But it gets worse.
Ramaphosa fired Jiba for allegedly withdrawing criminal corruption charges against Mdluli. But 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 erroneously suggested by the lower court. Jiba had not yet been appointed ANDPP at that time. Advocate Mrwebi, the sole decision-maker made the decision to withdraw the Mdluli charges more than three weeks before Jiba’s appointment on 28 December 2011. The pivotal question is whether Ramaphosa’s rush to complete the inquiry and fire Jiba even before the Constitutional Court heard and disposed of the GCB appeal were all meant to undermine the appellate court judgments favourable to Jiba and Mrwebi. Above all else, it was an unconstitutional decision to circumvent the law and a political vendetta simply because of Jiba’s perceived association with his political rivals. Such abuse of executive power is serious ground for impeachment.
The prospect of Ramaphosa being found guilty of interfering with prosecutorial independence also looms large. The constitutional guarantee in section 179(4) that the prosecuting authority must exercise its functions “without fear, favour or prejudice” would be completely attenuated if prosecutors face the prospect of being dismissed by a president for the exercise of their prosecutorial discretion, even assuming those decisions to be wrong. This has huge implications for the independence of the NPA as an institution and all its prosecutors, from the NDPP down to the prosecutor in the lowest court in this country. Ramaphosa’s decision was also contrary to Section 83(b) of the Constitution which obliges the President to uphold, defend and respect the Constitution as the supreme law of the Republic. Holding an inquiry, based on alleged lower court judgments that attenuate prosecutorial independence, was the exact opposite of the President’s constitutional obligation to uphold and defend prosecutorial independence.
Ironically, Ramaphosa the former trade unionist also showed his insouciance to Section 23 of our Constitution which entitles everyone to fair employment practices. His far-fetched legal theory is that Jiba can be removed from her current position as the DNDPP in 2019 for alleged errors or incompetence that occurred while she was acting in a higher position of NDPP for less than two years – the period between 28 December 2011 and sometime in August 2013. He asserts that during Jiba’s acting stint as ANDPP, some courts made adverse comments criticising her conduct in litigation.
In Ramaphosa’s bizarre view, being criticized by courts during litigation where one is represented by counsel and while acting in a higher position at the NPA are good reasons for removal from a lower position almost five(5) years after the events. Ironically Jiba has been in her current position from August 2013 until her dismissal in April 2019 and she has performed her job duties in a satisfactory manner. Even a half-educated shop steward would understand that a disciplinary inquiry which focused exclusively on Jiba’s acting stint in a higher position of NDPP she ultimately lost and ignores subsequent performance is a fundamentally unfair and insufficient basis for removal from the current position.
Ramaphosa has resorted to puzzling casuistry when he claims that disciplinary proceedings to determine whether advocates are “fit an proper” to remain on the roll of advocates apply different standards from the “fit and proper” requirements of Section 12(6) of the NPA Act. That legally flawed argument was rejected by the SCA in Jiba v. GCB. In both proceedings, the facts of the misconduct must be established and “the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry.” Accordingly, where Ramaphosa based his decision on alleged adverse lower court judgments against Jiba, he is bound by the SCA rulings finding that no “offending conduct” had occurred and must observe provisions of Section 165 of the Constitution. The SCA dealt with the factual allegations and concluded that no misconduct or unethical conduct was proven. Ramaphosa cannot circumvent the SCA ruling favourable to Jiba simply for political expediency. The President has dared the indomitable Jiba and must now pray for or pay the judges surreptitiously for a favourable outcome.