The legal representative of Nomgcobo Jiba, Advocate Vuyani Ngalwana, on Wednesday approached the commission of inquiry into state capture to request that the testimony of the former national director of public prosecutions (NDPP), Mxolisi Nxasana, should exclude evidence about his client, pending the issuing of a notice to Jiba.
This after Nxasana testified that Jiba allegedly instigated a campaign to dig up dirt on him, which would have prompted former president Jacob Zuma to remove him from the position.
In the morning, evidence leader at the commission, Advocate Paul Pretorius, told the inquiry’s chair, Deputy Chief Justice Raymond Zondo, that parties implicated in Nxasana’s evidence had not been notified because the commission’s legal team only received the former NDPP’s signed statement on Tuesday night.
However, Pretorius said those implicated would be notified immediately after the conclusion of Nxasana’s testimony.
Pretorius made two suggestions, the first of which was that Nxasana continues giving evidence before the commission, excluding reference to implicated parties and that once notices have been issued, Nxasana should return to the commission to finalise his testimony.
Zondo confirmed that he had directed that Nxasana should give testimony at the commission.
The commission’s chair said where notices have not been issued to implicated parties “that must be looked at carefully”.
Ngalwana said Jiba’s legal team questioned the timing of Nxasana’s testimony before the commission, with their concern being that Nxasana’s evidence would have an impact on members of the National Assembly who are yet to consider President Cyril Ramaphosa’s decision to fire Jiba.
In April, Ramaphosa took the decision to fire Jiba and Lawrence Mrwebi following a commission of inquiry – led by Justice Yvonne Mokgoro – found them “not fit and proper to hold their respective offices”.
Ngalwana requested that Nxasana’s testimony should proceed if it covers matters in the public domain and which are dealt with in affidavits before courts and in court judgements. However, Ngalwana noted that this, too, would pose difficulty because Jiba’s legal team has not had the opportunity to study Nxasana’s statement before the commission.
Ngalwana further asked that Nxasana’s testimony should subtract any evidence that implicates Jiba, whether the matter is in the public domain or not, but it “should be held back” to allow the legal team to study Nxasana’s statement.
Zondo said Nxasana should continue to give testimony at the commission, saying “and for now, there shouldn’t be any new matters that implicate persons that have not been” in the public domain or before courts.
Commenting on Ngalwana’s concerns over the timing of Nxasana’s testimony before the commission, Pretorius said it not the case that this was not done in order to prejudice Jiba.
“In any event, the timing was not the choice of the witness, the timing was imposed by the [commission],” Pretorius said.