President Cyril Ramaphosa disobeyed a court order when he appointed a commission of inquiry into sacked deputy national director of public prosecutions Nomgcobo Jiba, her legal counsel charged in the Western Cape High Court in Cape Town on Thursday.
Ramaphosa’s counsel countered this was not the case and Jiba’s presence at the National Prosecuting Authority (NPA) would harm the institution.
In April, Ramaphosa fired Jiba and senior prosecutor Lawrence Mrwebi after retired Constitutional Court Justice Yvonne Mokgoro recommended he sack them from the NPA, following an inquiry.
The inquiry found that neither of them were “fit and proper to hold their respective offices”, according to a statement from the Presidency.
The decision had to be referred to parliament to determine whether Jiba and Mrwebi should be reinstated, not whether they should be fired.
Parliament has begun work on this process, but stalled it pending Jiba’s court application in two parts.
In Part A, she is asking the court to order Ramaphosa and the National Director of Public Prosecutions (NDPP) Shamila Batohi to reinstate her to the deputy national director of prosecutions position, “with all associated employment benefits with immediate effect”.
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.
Judge Robert Henney heard arguments for Part A on Thursday.
Jiba’s case, as presented by advocate Muzi Sikhakhane, hinges on two points. The first is that Ramaphosa instituted the Mokgoro inquiry in contravention of a court order.
The order in question was handed down by Judge Selewe Mothle in the North Gauteng High Court in Pretoria on December 21, 2017, and reads as follows: “The president is directed to institute disciplinary inquiries against Jiba and Mrwebi into their fitness to hold office in the National Prosecuting Authority and to suspend them pending the outcome of those inquiries. It is further ordered that the implementation of this specific order be suspended pending the outcome of their ultimate appeal of the GCB [General Council of the Bar of South Africa] judgment.”
Sikhakhane argued that Ramaphosa should not have established the Mokgoro inquiry before the appeal process in the GCB matter had been finalised. This only happened in June this year, while Ramaphosa appointed the inquiry in November 2018.
“However powerful a president is in a democracy, their actions can’t be that flagrant,” said Sikhakhane, who also represented former president Jacob Zuma at the Zondo commission.
Henney wanted to know why Jiba had not interdicted the appointment of the Mokgoro inquiry. Sikhakhane said the legality of Ramaphosa’s decision did not depend on Jiba’s conduct.
The second point was that, according to Sikhakhane, Jiba should only have been fired after parliament’s process had been finished.
A Deputy National Director of Public Prosecutions is removed in terms of Section 12(6) of the National Prosecuting Authority Act, which gives the president the power to “remove” the incumbent, and parliament the power to “reinstate” the person. The president must refer the matter to parliament to consider reinstatement – this is the process currently before parliament, but stalled pending the court application.
Sikhakhane argued the decision to fire Jiba would only be complete once parliament had completed its decision.
However, he added: “I know that is not what the text shows.”
“Are you saying an executive decision cannot be complete until parliament says so?” Henney asked.
He also asked if it was not dangerous for the principle of the separation of powers.
Advocate Heidi Barnes, representing Ramaphosa, said Jiba’s application was “premature and unnecessary”.
She added the parliamentary process was a “complete and effective remedy” for Jiba, instead of the court application.
Barnes said for the president to interfere with the parliamentary process would be an “inappropriate interference” in the separation of powers, adding Section 12(6) of the NPA Act was as “clear as day” and that Jiba did not like what it says.
“It is clear and it is not constitutionally challenged. That argument is stillborn.
“It is entirely incorrect that the president can’t remove her if she is not scrapped from the advocates’ roll,” Barnes said.
In responding to Sikhakhane’s argument around the Mothle order, she said nothing in the order prohibited Ramaphosa from establishing the Mokgoro inquiry.
“There was no interdict, there was no prohibition on the president to institute the inquiry.”
Barnes said there was no “irreparable harm” for Jiba, but there would be harm to the administration of justice and the president’s duty to ensure the effective functioning of the NPA.
“The harm is obvious and serious,” she added.
Advocate Thabani Masuku, also on behalf of Jiba, said whether Jiba would cause harm at the NPA was “not a consideration at all”.
He admitted, to a question by Henney, that Jiba would not have brought the matter if she still received her salary and benefits.
Justice Minister Ronald Lamola, NPA head Shamila Batohi and National Assembly Speaker Thandi Modise are also respondents in the case. Their respective counsel made similar submissions to that of Barnes.
Henney has reserved judgment.