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Of the National Prosecuting Authority Act 32 of 1998

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Of the National Prosecuting Authority Act 32 of 1998 JMC-001 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 UNABRIDGED VERSION 1 APRIL 2019 1 JMC-002 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 WITNESSES .............................................................................................................. 5 LIST OF ABBREVIATIONS ................................................................................................... 10 1. INTRODUCTION ........................................................................................................... 12 1.1. Establishment of the Enquiry ............................................................................ 12 1.2. The Terms of Reference .................................................................................... 14 1.3. Rules of the procedure ...................................................................................... 17 1.4. Invitation to submit evidence and the need for cross-examination ................... 20 1.5. The structure of the report ................................................................................. 20 2. THE PROSECUTING AUTHORITY: IT’S LEGAL FRAMEWORK ................................ 22 3. THE STRUCTURE OF THE NPA .................................................................................. 30 3.1. Roles and functions ........................................................................................... 31 3.2. The National Director of Public Prosecutions ......................................................... 34 4. THE APPOINTMENT AND ELEVATION OF JIBA AND MRWEBI ............................... 41 4.1. Nomgcobo Jiba ................................................................................................. 41 4.2. Lawrence Sithembiso Mrwebi ........................................................................... 42 5. THE ALLEGATIONS AND THE EVIDENCE ................................................................. 43 5.1. The case law ..................................................................................................... 44 5.1.1. National Director of Public Prosecutions and Others v Freedom Under Law 2014 (1) SA 254 (GNP) (“FUL HC”) ................................... 44 2 JMC-003 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”) ...................... 54 5.1.3. Booysen v Acting National Director of Public Prosecutions and Others [2014] 2 ALL SA 319 (KZD) delivered on 26 February 2014 ........................................ 57 5.1.4. Zuma v Democratic Alliance [2014] 4 All SA 35 (SCA) delivered on 28 August 2014 (“Spy Tapes 2”) ........................................................................... 66 5.1.5. General Council of the Bar of South Africa v Jiba & Others 2017 (2) SA 122 (GP) .................................................................................................................. 73 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) ................................................................................................... 85 5.1.7. Freedom Under Law v National Director of Public Prosecutions & Others 2018 (1) SACR 436 (GP) .................................................................................. 92 5.2. Evidence surrounding the cases ....................................................................... 96 5.2.1. Booysen................................................................................................ 96 5.2.2. Mdluli .................................................................................................. 143 5.2.3. The Spy Tapes ................................................................................... 216 5.2.4. GCB .................................................................................................... 227 5.3. Other evidence and allegations ....................................................................... 258 5.3.1. Issues and allegations preceding appointment .................................. 258 5.3.2 Selebi Saga ........................................................................................ 270 5.3.3. OECD and MacAdam ......................................................................... 279 5.3.4. State Capture ..................................................................................... 286 5.3.5. Plane Ticket ........................................................................................ 288 5.3.6. NPA under Nxasana ........................................................................... 290 5.3.7. Third parties........................................................................................ 304 6. AN EVALUATION OF THE EVIDENCE ...................................................................... 306 6.1. Jiba .................................................................................................................. 307 6.1.1. FUL HC and FUL SCA ....................................................................... 307 6.1.2. Spy Tapes 2 ........................................................................................ 308 6.1.3. GCB HC and SCA .............................................................................. 309 6.1.4. General comments on the cases relating to Jiba ............................... 310 3 JMC-004 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 6.1.5. Evidence related to the cases .............................................................311 6.1.6. Other evidence ................................................................................... 315 6.2. Mrwebi ............................................................................................................. 318 6.2.1. FUL HC, FUL SCA, GCB HC and GCB SCA ...................................... 318 6.2.2. Evidence related to other matters....................................................... 323 6.2.3. Other evidence ................................................................................... 324 7. FINDINGS AND RECOMMENDATIONS ..................................................................... 325 7.1. Jiba: ................................................................................................................. 327 7.2. Mrwebi: ............................................................................................................ 331 7.3. Recommendations .......................................................................................... 335 8. CONCLUDING REMARKS ......................................................................................... 335 8.1. Implications for the NPA .................................................................................. 335 8.2. Avoiding a recurrence ..................................................................................... 337 8.3. Presidential timelines ...................................................................................... 339 8.4. Acknowledgements ......................................................................................... 343 ANNEXURE: CHRONOLOGY OF EVENTS ........................................................................ 344 4 JMC-005 ENQUIRY IN TERMS OF SECTION 12(6) OF THE NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998 LIST OF WITNESSES Johan Wessel Booysen (“Booysen”) is a retired Police Officer who held a rank of Major General. He retired in 2016. He received training in racketeering investigations. His evidence was on affidavit and he testified at the Enquiry. Glynnis Breytenbach (“Breytenbach”) is a Member of Parliament and has been since 2014 when she left the NPA. She was one of the founding members of the SCCU, which she joined when it started in 1999. She became a DDP in the SCCU in 2001 and was appointed as Senior DDPP and Regional Head of SCCU in 2007. Breytenbach submitted an affidavit and gave evidence at the Enquiry. Theunis Jacobus de Klerk (“de Klerk”) is a Lieutenant Colonel in SAPS stationed at the Serious Corruption Offences Unit. His evidence was in affidavit form. Given the nature of his evidence he was not requested to give oral evidence. General Anwa Dramat (“Dramat”) is retired. Prior to retirement, he was Lieutenant General and the Deputy National Commissioner in the South African Police Services (“SAPS”). He was also the Head of the Directorate for Priority Crime Investigations (“DPCI” or “the Hawks”). He submitted an affidavit and testified at the Enquiry. Adv Jan Maatjan Ferreira (“Ferreira”) was admitted as an advocate in December 1993. He worked as a State Advocate, then as Senior State Advocate until he was appointed as DDP at the SCCU in 2003. He then became a Senior DDP at the SCCU in 2007. Ferreira deposed to an affidavit for the Enquiry on 14 January 2019 and gave evidence at the Enquiry. Kersananthan Govender (“Govender”) is a Deputy Director General: Governance and Public Administration in the Department of Public Service Administration. His evidence was in affidavit
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