Parliament’s process to consider President Cyril Ramaphosa’s decision to fire senior prosecutors Nomgcobo Jiba and Lawrence Mrwebi has been put on ice until, at the earliest, September 19.
The parties involved in Jiba’s urgent interdict to halt the parliamentary process in the chambers of Judge President of the Western Cape High Court John Hlophe agreed to an order that suspends it until September 19, when the first part of Jiba’s application will be heard.
In April, Ramaphosa fired Jiba and Mrwebi, after retired Constitutional Court Justice Yvonne Mokgoro recommended that he sack them from the NPA, following an inquiry.
The inquiry found that both of them were “not fit and proper to hold their respective offices”, according to a statement from the Presidency.
The decision has to be endorsed by both houses of parliament – the National Assembly and the National Council of Provinces. The question before parliament is whether Jiba and Mrwebi should be reinstated, not whether they should be fired.
The National Assembly’s Portfolio Committee on Justice and Correctional Services and the National Council of Provinces’ Select Committee on Security and Justice have already begun work on this process. They allowed Jiba and Mrwebi to make written presentations to the committees on why they should be reinstated.
Mrwebi complied, but Jiba indicated that she would ask the court to review Ramaphosa’s decision.
The committees would have continued their work this week. On Monday, Jiba’s legal representative Zola Majavu informed parliament that they had approached the court for an urgent interdict to halt the national legislature’s proceedings.
“Aggrieved by the processes thus far, she instructed us to launch a review application, which we did and cited amongst others the President, the Speaker of the National Assembly, the NPA, the Minister of Justice and the constituent members of the Inquiry panel,” Majavu said in a statement on Wednesday.
“Most importantly, the purpose of citing the Speaker of Parliament was to alert the Speaker of the impending review and also requested that the intended parliamentary processes be placed on hold, pending the outcome of the judicial review application. It remains our considered view, that such a request was not only reasonable, but also legally sound and precedented and expected no opposition or difficulty with that, from parliament’s perspective.”
On Tuesday, the committees decided to wait on Wednesday’s court proceedings before deciding on a way forward.
Portfolio Committee on Justice and Correctional Services chairperson Bulelani Magwanishe said in a statement: “The committee will abide by the order of the court. The parliamentary process, which was envisaged in terms of section 12(6) of the NPA Act, will be put in abeyance, pending a determination on Adv Jiba’s application to have her removal from office by President Cyril Ramaphosa and National Director of Public Prosecutions declared unconstitutional and unlawful.”
Parliament had a deadline of September 3 to come to a decision.
Parliamentary spokesperson Moloto Mothapo said in a statement: “Parliament’s agreement to the draft order is motivated by its endeavour to uphold fairness, impartiality and the rule of law in processing this matter. The National Prosecuting Authority Act obliges Parliament, ‘within 30 days… or as soon thereafter as is reasonably possible’, to pass a resolution about whether or not the restoration of the deputy national director is recommended.
“The draft agreement, which is to be made an order of court, demonstrates Parliament’s endeavour to ensure fairness and at the same time to uphold its statutory obligations.”
Majavu said Jiba was satisfied with the Wednesday’s order and “feels vindicated in the assertions she has been making all along”.
“She too, found it mind-boggling that Parliament was adamant that it would proceed with its consideration of the matter in the face of a judicial review, as if it does not exist, and in which the Speaker was cited as a respondent and duly served with those court papers.”
“Be that as it may, we are satisfied that our client’s rights have been protected to a reasonable extent and in line with our assertions right up to this moment.”
In what appears to be a Stalingrad strategy, Jiba filed a court application in two parts.
In the first part, she is asking the court to order Ramaphosa and the National Director of Public Prosecutions (NDPP) to reinstate her to the deputy national director of prosecutions position, “with all associated employment benefits with immediate effect”, News24 reported earlier this month.
She also wants the court to interdict or prohibit the president and the NDPP from filling the position until the finalisation of the review. In part B of the application, Jiba wants the court to order that Ramaphosa violated the Constitution and therefore acted unlawfully when he instituted an inquiry in terms of Section 12 of the NPA Act against her.
She also wants Section 12(6)(a)(I) of the NPA Act, Act 2 of 1998, to be declared unconstitutional to the extent that it empowers the president.
She believes Section 12(6)(c) and Section 12(7) of the Act should be declared unconstitutional in that the requirement of a simple majority of parliament for the removal of the National Director, Deputy National Director, Director and Special Director of the Public Prosecutions, rather than a two-thirds majority, is inimical to prosecutorial independence.
Jiba’s papers argue that the terms of reference for the Mokgoro inquiry into her fitness to hold office be reviewed and set aside on the basis that they amounted to an “unconstitutional investigation into binding court judgments and order and/or violated the principle of prosecutorial independence”.