This article was originally published in Africa in Fact, the journal of Good Governance Africa.
By Rian Malan
Spare a thought for South African journalists, reduced to peering into murk and gun smoke for clues as to what’s going on inside South Africa’s National Prosecuting Authority, the crisis-riddled state agency that decides the fate of criminal suspects in the country. Police files flow into the NPA’s maw, and decisions emerge on the far side—prosecute this case, abandon that one. Once, these decisions were respected. Now they often precipitate furious battles between rival law enforcement factions whose weapons include dirty tricks, illegal wiretaps and sensational leaks to the media.
On Aug. 18, however, the smoke cleared momentarily. The scene is a press conference at the NPA’s Pretoria headquarters. Two figures sit on the podium. The dashing man with shaven pate is Shaun Abrahams, a young lawyer plucked from relative obscurity to become the new head of the NPA. The woman beside him is Nomgcobo Jiba, a veteran of the NPA’s internal wars. Abrahams announces that he is appointing Jiba to a newly created position in many respects more powerful than his own. As deputy director of public prosecutions, she will oversee all prosecutorial decisions countrywide.
Given Jiba’s history, this causes certain jaws to gape. “Outrageous,” says Corruption Watch, a lobby group based in South Africa. “A massive step backward,” says a local newspaper. Jiba counters that she is “hurt and offended” by such criticism, and laments the damage it is causing to her three children. She also denies that she is in any way biased in favor of President Jacob Zuma. With that, the players leave the podium, and the murk closes in again.
To understand how it came to this, we have to return to Apr. 6, 2009, the day the NPA announced it was dropping corruption charges against Zuma, then a presidential hopeful. Helen Zille, then-leader of the Democratic Alliance, South Africa’s largest opposition party, is waiting outside, trembling with rage. She denounced the NPA decision as a travesty and vows that her party will not rest until the agency discloses every shred of evidence upon which it is based.
In particular, the DA wants to hear the so-called “spy tapes,” fruit of a cloak-and-dagger wiretapping operation masterminded by the South African Police Service’s Crime Intelligence Division. According to the NPA, two voices can be heard on excerpts of the tapes. One belongs to Leonard McCarthy, head of the NPA’s directorate of special operations, the other—to Bulelani Ngcuka, an influential businessman and close ally of the then-president, Thabo Mbeki. These men are heard agonizing about the timing of Zuma’s arrest, which they think might cause riots if mishandled. Their conversations also make it clear that McCarthy is not exactly neutral in the rivalry between Mbeki and Zuma.
Audio copies of these conversations were leaked to Zuma’s lawyers, who charged that McCarthy’s indiscretions have hopelessly tainted the NPA’s case. Prosecutors working on the investigation begged to differ, but their seniors overrule them and the Zuma prosecution is abandoned—a decision that opens the way for Zuma to become president. Zille argued that so momentous a decision should have been taken by a judge in open court, not behind closed doors.
Hence the DA’s so-called “spy tapes” case, which began as an urgent review application on the day after Zuma’s charges were withdrawn and is still dragging its way through the courts today. From the start, it is repeatedly blocked or delayed by Menzi Simelane, the Zuma appointee who heads the NPA. The DA retaliates by filing a parallel lawsuit, arguing that Simelane seems incapable of grasping that the constitution requires him to be neutral, and asking for his removal from office. The court rules in the DA’s favor: Simelane has to go.
Called upon to find a replacement, Zuma’s eye falls upon Jiba. She is too inexperienced to be appointed the NPA’s head, but Zuma decides she will make an acceptable temporary stand-in. She becomes acting national director of public prosecutions in December 2011. Soon after taking up her new position, Jiba is confronted by a court order compelling the NPA to hand over the spy tapes and associated records within 14 days.
Ironies abound here. Jiba played a role in the police espionage operation that exposed the Ngcuka/McCarthy conversations in the first place, thereby saving Zuma from criminal prosecution. Then, on coming to power, Zuma took a step some saw as a thank-you: he expunged the criminal record of her husband, a lawyer jailed for stealing his client’s money.
Now a court is trying to compel Jiba to hand over evidence that might overturn the NPA’s 2009 decision and land the president back in the dock, facing 783 criminal charges arising from alleged arms deal bribes. Her response is an affidavit arguing that the spy tapes are subject to attorney-client privilege, and that the DA can have them only if Zuma’s lawyers agree. A damning appeal court judgment concludes that Jiba should have taken a position, and not have left the decision in Zuma’s hands. “Such conduct undermines the esteem in which [her office] ought to be held by citizens of this country,” the court says.
Jiba’s next crisis arrives in April 2012, when she places a veteran prosecutor, Glynnis Breytenbach, under suspension, allegedly for challenging NPA decisions in a matter involving Richard Mdluli, another veteran of the clandestine police effort to bug NPA telephones. He had been appointed head of police crime intelligence after Zuma came to power, only to fall victim to what he describes as a conspiracy orchestrated by political enemies. In 2011, facing an array of criminal charges, he wrote a letter asking President Zuma to intervene on his behalf and promising in return “to help the president succeed next year”— generally interpreted as an offer to help Zuma fend off any challenge he might face at a forthcoming ANC electoral conference.
One of the cases against General Richard Mdluli involves an unsolved murder, but attention should be paid to his alleged abuse of Crime Intelligence’s secret fund for informers, spies and undercover agents. In a secret report to the Inspector-General of Intelligence, General Mark Hankel alleged that General Mdluli has appointed several friends and relatives to such positions, even though their utility as spies is not exactly clear. His wife and ex-wife, for instance, are both reportedly drawing salaries equivalent to that of a police colonel while sitting at home doing nothing.
In December 2011, one of Jiba’s subordinates announced that he is withdrawing fraud charges against General Mdluli on the grounds that the NPA is barred from intervening in top-secret intelligence matters. The aforementioned Breytenbach, lead prosecutor on the case, was dumbfounded. She wrote Jiba a 25-page memo, arguing that the charges against General Mdluli are legally sustainable and urging Jiba to allow her to reinstate them. Jiba ignored her. Breytenbach was placed on suspension and eventually forced out of the NPA. General Mdluli returned to work in March 2012, apparently cleansed and vindicated.
A non-profit organization named Freedom Under Law challenged General Mdluli’s reinstatement in court, and Jiba found herself before a judge, attempting to explain her actions. She claimed underlings made the key decisions, not her. Indeed, she said she wasn’t even aware that General Mdluli had been let off the hook, an assertion that would later strike retired Constitutional Court judge Zac Yacoob as “incredible.”
Jiba went on to claim that she received no objections to the Mdluli decision. This flew in the face of evidence from Breytenbach, who shows that she formally requested Jiba to rescind the Mdluli decision, only to be suspended and slapped with an array of disciplinary and corruption charges, all of which were eventually resolved in her favor. Judge John Murphy found Jiba’s conduct inexplicable, and ordered that the charges against Mdluli be reinstated. In his judgment, Judge Murphy slated Jiba for failing to evaluate the gravity of the evidence against General Mdluli, saying that she had attempted to “shield illegal and irrational decisions from judicial scrutiny.”
Meanwhile, General Johan Booysen, a central figure in a sizzling scandal in Durban, attacked Jiba on another front. General Booysen has made a nuisance of himself by authorizing a wiretap operation against Thoshan Panday, a flamboyant businessman allegedly connected to the local Zuma patronage machine. According to the Mail & Guardian, a Johannesburg weekly, the resulting recordings point incriminating fingers at persons in high places, including (some say) the president. When General Booysen declined to accept a bribe and look the other way, he found himself facing criminal charges under the Prevention of Organised Crime Act.
Outraged by this insult to his integrity, General Booysen challenged his arrest in court. Jiba was called upon to explain why she authorized his detention.
In response, she produced a stack of 290 witness statements pertaining to shootings involving officers from the Cato Manor organized crime unit, which falls under General Booysen’s command. Jiba argued that the unit is a death squad, given to performing paid assassinations and extrajudicial executions. But the evidence in this regard is contentious, and against General Booysen in person, almost non-existent. Analysis of those 290 statements showed that General Booysen’s name was mentioned only three times. In two cases, he attended police shootings in their aftermath, and did nothing inappropriate.
The rest of her evidence appeared even weaker. One of the affidavits on which she based her decision is dated two weeks after Booysen’s arrest, and devoid of direct accusations against General Booysen. A second is neither signed nor dated, and a third comes from a witness who has since died. General Booysen maintained that Jiba actually has no evidence against him at all, and that her claims to the contrary are “mendacious.” When Jiba failed to provide a rebuttal, Judge Trevor Gorven draws the logical inference: Jiba has tacitly admitted to lying under oath.
By now, Jiba has stepped down from her temporary leadership position and the NPA has a new head, Mxolisi Nxasana. By several accounts, Nxasana is an honest man who wants to do the right thing. Perturbed by mounting judicial criticism of Jiba, he asked outside counsel to review her performance. The consultant recommended that Jiba be prosecuted for her actions in the Booysen case. When this failed to convince the presidency, Nxasana refered the matter to a committee headed by Judge Yacoob. He agreed: there is a “prima facie” case to answer. With that, Nxasana steeled himself and filed fraud and perjury charges against Jiba.
Judging by the reaction, this decision was not welcome. A hidden hand reached into Nxasana’s past and came forth with several skeletons. According to a presidential proclamation, these include youthful convictions for assault and unspecified “criminal charges for acts of violence.” His sense of propriety suddenly inflamed, Zuma announced that he is convening a hearing to assess Nxasana’s fitness for office. According to NPA insiders, Nxasana has no stomach for war, and the strain is affecting his family. He decided to step down in return for 17 million rand ($2.2 million) and a statement from Zuma withdrawing any aspersions that may have been cast on his character.
With Nxasana gone, rivals flooded into the vacuum left by his departure and set about reversing decisions made during his brief tenure as NPA chief. Within days, the four-year-old fraud case against General Mdluli was “temporarily” abandoned to allow the NPA time to finish its investigation. The youthful and relatively inexperienced Abrahams was installed as the new NPA head. One of his first acts in office was to announce the withdrawal of criminal charges against Jiba on the grounds that she “acted in good faith” in authorizing General Booysen’s arrest.
Soon after, General Booysen was suspended yet again. A senior officer who backed General Booysen’s pursuit of Panday—Robert McBride, head of the Independent Police Investigations Directorate—is also placed under suspension. In fact, Nxasana himself might be a victim of the Panday case: last year, newspapers reported that he was planning to send ace prosecutor Gerrie Nel to Durban to reexamine all the cases brought against Panday. Now that investigation appears to be dead in the water.
In earlier times, a person in Panday’s position might have worried about losing his gleaming red Ferrari to Willie Hofmeyr’s Asset Forfeiture Unit, one of the few NPA divisions regarded as clean and effective. But Hofmeyr was sidelined after Abrahams came to power, and now occupies an inconsequential administrative position.
Returning back to the press conference described in the opening paragraphs, according to Breytenbach—now the DA’s shadow justice minister—this reflects the reality: Jiba is the real boss of the NPA, she says, and Abrahams is her patsy. “Jiba is odious,” Breytenbach says. “Her agenda is to protect the president and his networks, even if it means destroying the NPA.”
The DA has an agenda too—get the president. But something more important than Zuma’s fate is at stake here. South Africa’s once-respected prosecutorial service is itself increasingly under suspicion. As David Lewis of Corruption Watch puts it, “It is time to be really, really worried.”
Rian Malan is a Johannesburg-based musician, writer, documentarian, and journalist.
[Photo courtesy of Davinci77]