MEDIA STATEMENT: JIBA’S RESPONSE TO THE PRESIDENT’S DECISION TO

ACCEPT THE RECOMMENDATIONS OF THE MORGORO ENQUIRY

1. At around 20h18 on Thursday, 26 April 2019, my attorneys of record received an email

from the Honourable President Ramaphosa (“the President”) conveying to me his decision

to accept the recommendations of the Enquiry into my fitness for office to remove me from

office of the DNDPP. I have therefore ceased to be the DNDPP as from today. As I stated

in my opening statement in the Enquiry, I have served my country as a career prosecutor

for a period of 27 years. I have done so to the best of my ability and training. My

appointment was in a way unprecedented and historical because I am the first black African

woman prosecutor to have been appointed to the position of Acting NDPP and the first

career prosecutor with actual prosecutorial experience and the first prosecutor to have been

removed from my position as a DNDPP. The disappointing outcome of the Enquiry and

the decision of the President will never erase my hard-earned experience, and in the annals

of South African prosecutorial history, my true story will one day be told in better terms.

2. I pleaded with the Enquiry to make recommendations that would strengthen the

independence of the NPA to perform its supreme constitutional functions with industry and

fortitude. I am disappointed by its failure to do so. There are numerous elementary but

gross errors of judgment made by the Enquiry that a review application to the High Court

will demonstrate. For example, it is inimical to prosecutorial independence to impugn my

decision to authorise the prosecution of Colonel Booysen (“Booysen”), in circumstances

where he must answer for the murder of more than twenty (20) black suspects. I point out

the race of the suspects because I know that if the roles were reversed and a black policeman

had overseen the murder of over twenty (20) white suspects, I would be regarded as a
 heroine for prosecuting such an accused. Whatever the Enquiry and the President’s

conclusions are on my decision (as a prosecutor) regarding Booysen, there are over twenty

families in Cato Manor whose children were gunned down in police raids that must still be

explained to the public through our court system. The blood of those killed in these raids

will continue to seek justice until Booysen takes the stand to explain his role. As matters

stand, and assuming that no interference or intervention is made, he is due to appear in

Court in October 2019 after his attempts to have the charges withdrawn were dismissed by

the High Court.

3. Another elementary issue missed by the Enquiry is that the Supreme Court of Appeal

(“SCA”) found nothing wrong with my role in the prosecution of Booysen. The Enquiry

is not a Court of Law and may not issue a recommendation that contravenes a factual

finding of a Court of Law. That much is clear from sections 165(3), (4) and (5) of the

Constitution. The Enquiry failed to grasp basic constitutional principles governing its

work- more particularly that it is not entitled to overturn the findings of a Court. The

President also failed to respect the order of the SCA in so far as he accepted that I acted

incompetently when I authorised the charging of Booysen. The court order of the SCA is

binding on the President, as it is on the Enquiry, unless overturned on appeal by the

Constitutional Court. The Enquiry, as well as the President, may not interfere with the

findings of a court in contravention of section 165(3) of the Constitution. To do so would

undermine the Judiciary and places a strain on the separation of powers principle.

4. The Enquiry and the President are wrong to impugn my conduct in relation to the cases of

Mdluli and the Spy Tapes. A dispassionate and rigorous review of the evidence will

disclose that the SCA was correct when it found (as it did) nothing wrong with my
 involvement in those matters: the prosecutorial decision involving Mdluli was taken before

I was appointed as ANDPP and the glaring evidence on the Spy Tapes, as in all cases, is

the affidavit of Advocate Paul Kennedy SC for the NPA which made it clear what my role

was in that case. It is wrong to hold me incompetent for the work of the NPA which was

done under the hand of counsel, in many instances Senior Counsel.

5. I have raised these preliminary legal points to highlight my intention to clear my name and

the legacy of my professional commitment as a prosecutor of over 27 years. The President

conveyed to me that I am disqualified from serving my country in any position in the Public

Service. I can assure the President that I will not be stripped, by executive stealth and fiat,

of my rights routinely accorded to all citizens to serve this great country in the position of

my calling. The President’s decision to declare me a prohibited public servant will not

stand judicial scrutiny because it is self-evidently wrong, amounts to abuse of executive

power, alternatively a failure to properly exercise that power. I stand by my evidence given

to the Enquiry and intend to ensure that my actions were all done to advance prosecutorial

independence and not to undermine them.

6. The Enquiry’s findings have been most unfair to me. I do not accept them as a final

statement on my life and from today, I will dedicate a significant portion of my remaining

life to showing all the black women of South Africa with ambition to became the best in

any field that I was a worthy candidate to be a custodian of prosecutorial independence. I

prayed for my internal peace and received the assurance of God’s grace on this challenging

journey. It is painful and deeply troubling but I have felt the loving assurance of divine

providence.
7. I have consulted with my lawyers, (to whom I am deeply grateful), and have the assurance

of their service in taking the matter forward. For now, and upon the resumption of the sixth

Parliament, the decision of the President must receive the attention of the Legislature, who

have the last word on my fate. I look forward to engaging Parliament when the matter of

my removal from office is debated – to share with those custodians of our prosecutorial

independence, my experience. In that engagement, I hope that they will see that the

Enquiry and the President has been grossly unfair in the manner in which they have handled

a matter so important to the principle of prosecutorial independence.

8. I thank many South Africans and prosecutors who have supported the work of the NPA

and urge that nothing is spared to give the NPA the full support it needs to discharge its

constitutional mandate. No prosecutor should fear taking prosecutorial decisions because

of threat of disciplinary action. To those prosecutors that I worked with, remain strong and

courageous, fearing nothing but revering the Constitution. You remain the custodians of

our Constitution and for that be strong and courageous.

Issued by Adv. Nomgcobo Jiba

26 April 2019