Jiba stalls parliamentary process to consider her removal from office
Parliament's justice portfolio committee has halted a process meant to consider the dismissal of advocates Nomgcobo Jiba and Lawrence Mrwebi in response to an application by Jiba to interdict it.
Her application will be heard in the high court in Cape Town on Wednesday.
“We will wait for tomorrow's court proceedings to get guidance,” said justice committee chairperson Bulelani Magwanishe in closing a 30-minute discussion on the matter on Tuesday.
The committee was scheduled to consider Mrwebi’s submission on why he should be reinstated to his position at the National Prosecuting Authority (NPA). But MPs heard on Tuesday morning that Jiba had filed an application for an urgent interdict to stay the parliamentary process, pending the finalisation of a review application against President Cyril Ramaphosa and the Mokgoro Commission of Inquiry.
Ramaphosa fired the two senior prosecutors in April at the recommendation of a commission chaired by retired constitutional court judge Yvonne Mokgoro after an inquiry into whether they were fit to hold office.
The National Prosecuting Authority Act requires parliament to pass a resolution as to whether a dismissed national director of public prosecutions or deputy national director of public prosecutions should be reinstated.
At its last meeting on July 19, the justice portfolio committee, to which the NPA accounts, gave Jiba and Mrwebi 10 working days to make representations as to why they should be restored to office.
Only Mrwebi responded with a written submission, which the committee was scheduled to consider on Tuesday. Jiba did not make a presentation but went to court seeking to review the findings of the Mokgoro Commission and Ramaphosa's decision to fire her. She is also seeking reinstatement and to halt the parliamentary process from going ahead.
Her main gripe, however, was the constitutionality of the NPA Act which triggered the parliamentary process.
She charged that the act prescribed only a simple majority for her removal when in fact, for other similarly situated institutions a two-thirds majority was required.
“So to that extent she feels that the national director of public prosecutions or the NPA as an institution is not adequately insulated from attacks from other organs of state. She feels that she needs a similar protection,” said Siviwe Njikela, a parliamentary legal adviser who briefed MPs about the matter on Tuesday.
Njikela revealed that Mrwebi, who had initially complied with the committee's request, had also written to parliament on Tuesday morning, saying he felt the issues raised by Jiba in her application to court were similar to the issues that he raised with the committee. On that basis he requested the committee not proceed in respect of his submission until the matter was finalised in court.
Njikela told MPs that they had initially disagreed with Jiba's invocation of the sub judice rule because she was seeking to review the president's decision to fire her and the Mokgoro commission findings. “We indicated that at the time that parliament initiated this process, there was no pending court action and therefore it was within the rights of parliament to comply with the statutory provision,” said Njikela.
He said they also indicated that parliament was undertaking a statutory process which was a peremptory process and that it was not within the discretion of parliament to simply stop the process as it is required to do so within a particular period of time or within a reasonable time if there were circumstances that prevent that.
Njikela said after Jiba filed an application on Monday afternoon to halt the parliamentary process, they decided to file a notice to abide as far as it related to the urgent interdict and also file an explanatory affidavit before court explaining the processes that Parliament has undertaken, what had triggered those processes and leave the matter in the hands of the court to decide.
Njikela explained this was due to the fact that parliament had to adjudicate or oversee the executive action that was the subject of litigation already and that, maybe Parliament should not enter the [process ] to preserve the integrity of its process which it still has to take at the end of all the litigation.
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