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Enquiry in Terms of Section 12(6) of the National Prosecuting Authority Act 32 of 1998 Abridged Version

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Enquiry in Terms of Section 12(6) of the National Prosecuting Authority Act 32 of 1998 Abridged Version ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 ABRIDGED VERSION 1 APRIL 2019 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 TABLE OF CONTENTS TABLE OF CONTENTS .............................................................................................................2 LIST OF ABBREVIATIONS .......................................................................................................5 1. INTRODUCTION ...............................................................................................................7 1.1. Establishment of the Enquiry ................................................................................7 1.2. The Terms of Reference ........................................................................................9 1.3. Rules of the procedure ........................................................................................ 11 1.4. Invitation to submit evidence and the need for cross-examination ..................... 14 1.5. The structure of the report ...................................................................................15 2. THE PROSECUTING AUTHORITY: IT’S LEGAL FRAMEWORK ..................................16 3. THE STRUCTURE OF THE NPA .................................................................................... 25 3.1. Roles and functions .............................................................................................25 3.2. The National Director of Public Prosecutions ...................................................... 29 4. THE APPOINTMENT AND ELEVATION OF JIBA AND MRWEBI ................................. 36 4.1. Nomgcobo Jiba ...................................................................................................36 4.2. Lawrence Sithembiso Mrwebi .............................................................................37 5. THE ALLEGATIONS AND THE EVIDENCE ...................................................................38 5.1. The case law .......................................................................................................38 5.1.1. National Director of Public Prosecutions and Others v Freedom Under Law 2014 (1) SA 254 (GNP) (“FUL HC”) – decided by Murphy J .................................................................................................38 2 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 5.1.2. National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA) delivered on 17 April 2014 (“FUL SCA”) – Brand JA (Mthiyane DP, Navsa, Maya and Ponnan JJA concurring) ..... 44 5.1.3. Booysen v Acting National Director of Public Prosecutions and Others [2014] 2 ALL SA 319 (KZD) delivered on 26 February 2014 – decided by Gorven J ............................................................................................45 5.1.4. Zuma v Democratic Alliance [2014] 4 All SA 35 (SCA) delivered on 28 August 2014 (“Spy Tapes 2”) – Navsa ADP (Mpati P, Brand, Ponnan and Tshiqi JJA concurring) ........................................................ 47 5.1.5. General Council of the Bar of South Africa v Jiba & Others 2017 (2) SA 122 (GP) – Legodi J (Hughes J concurring) .....................................49 5.1.6. Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa 2019 (1) SA 130 (SCA) (10 July 2018) – Majority: Shongwe ADP (Seriti and Mocumie JJA concurring); Dissent: Van der Merwe JA (Leach JA concurring) – currently on appeal at the Constitutional Court ................ 50 5.1.7. Freedom Under Law v National Director of Public Prosecutions & Others 2018 (1) SACR 436 (GP) ............................................................ 53 5.2. Evidence surrounding the cases .........................................................................54 5.2.1. Booysen..................................................................................................54 5.2.2. Mdluli ......................................................................................................69 5.2.3. Representations which were made but kept secret by Mrwebi .............. 80 5.2.4. The Spy Tapes .......................................................................................80 5.2.5. GCB ........................................................................................................83 5.3 Other evidence and allegations ...........................................................................85 5.3.1. Evidence of other witnesses ................................................................... 85 5.3.2. The CEO Position ...................................................................................90 5.3.3. Jiba’s husband’s presidential pardon ..................................................... 91 5.3.4. Jiba’s legal qualifcations ........................................................................92 5.3.5. Mrwebi’s track record as Regional Head of DSO and allegations of disciplinary steps against him ................................................................. 94 5.3.6. Selebi Saga ............................................................................................97 5.3.7. OECD and MacAdam ...........................................................................101 5.3.8. State Capture .......................................................................................102 5.3.9. Plane Ticket ..........................................................................................102 5.3.10. NPA under Nxasana .............................................................................103 3 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 6. AN EVALUATION OF THE EVIDENCE ........................................................................108 6.1. Jiba ....................................................................................................................109 6.1.1. FUL HC and FUL SCA .........................................................................109 6.1.2. Spy Tapes 2 .......................................................................................... 110 6.1.3. GCB HC and SCA .................................................................................111 6.1.4. General comments on the cases relating to Jiba ................................. 112 6.1.5. Evidence related to the cases .............................................................. 113 6.1.6. Other evidence ..................................................................................... 117 6.2. Mrwebi ...............................................................................................................120 6.2.1. FUL HC, FUL SCA, GCB HC and GCB SCA ........................................ 120 6.2.2. Evidence related to other matters......................................................... 125 6.2.3. Other evidence .....................................................................................125 7. FINDINGS AND RECOMMENDATIONS .......................................................................127 7.1. Jiba: ...................................................................................................................128 7.2. Mrwebi: ..............................................................................................................133 7.3. Recommendations ............................................................................................136 8. CONCLUDING REMARKS ........................................................................................... 137 8.1. Implications for the NPA ....................................................................................137 8.2. Avoiding a recurrence .......................................................................................138 4 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 LIST OF ABBREVIATIONS “ACTT” Anti-Corruption Task Team “AFU” Asset Forfeiture Unit “AG” Auditor General “The BF report” The report prepared by Breytenbach and Ferreira dated 13 April 2011 “CASAC” Council for the Advancement of the South African Constitution “The Code” Code of Conduct for Members of The National Prosecuting Authority Under section 22(6) of the National Prosecuting Authority Act, 1998 – R. 1257 29 December 2010 “CCC” Complex Commercial Crime “C-funds” DSO’s confdential funds, used to pay informants “CI” Crime Intelligence Unit “the CPA” Criminal Procedure Act 51 of 1977 “DG” Director General in the Department of Justice and Correctional Services (and predecesssors-in-title) “Directives” Prosecution Policy Directives “DDPP” Deputy Director of Public Prosecutions “DNDPP” Deputy National Director of Public Prosecutions “DOJCD” Director General, Accounting Offcer of the NPA “DPCI” Directorate for Priority Crimes Investigations “DPP” Director of Public Prosecutions “DPSA” Department of Public Service and Administration “DSO” Directorate for Special Operations “ELs” Evidence Leaders “FUL” Freedom under the Law “GCB” General Council of the Bar of South Africa “IAP” The International Association of Prosecutors “IGI” Inspector General of Intelligence “I/O” Investigating offcer “IPID” Independent Police Investigative Directorate “the ISO Act” Intelligence Services Oversight Act 40 of 1994 “Jiba CV” The curriculum
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