Jiba loses first round in battle to get job back
Former prosecutions boss Nomgcobo Jiba has lost the first round of her court battle to be reinstated to her position pending the parliamentary process that will either confirm or overturn her removal, says a Business Day report.
President Cyril Ramaphosa fired her from her position as deputy NDPP on the recommendation of the Justice Yvonne Mokgoro inquiry into her fitness to hold office. She was fired together with Special Director of Public Prosecutions, Advocate Lawrence Mrwebi.
The ruling by the Western Cape High Court means that Jiba will not receive a salary from the NPA while she fights to convince Parliament that she should be restored to her position, and fights her dismissal by Ramaphosa in a more wide-ranging challenge to the Mokgoro inquiry.
While Jiba is understood to have successfully fought for state funding of these legal battles, her lawyers have made it clear that she is struggling to cope without her salary, and has essentially been ‘thrown into the street’.
Jiba’s lawyers argued that the immediate cutting of her salary and benefits after she was fired by Ramaphosa in April this year had not only been financially devastating to her, but was also unconstitutional and unfair.
This, they said, was because she could only be removed after Parliament considered Ramaphosa’s reasons for firing her, and heard her response to them. They also argued the NPA had continued to pay former NPA head Vusi Pikoli’s salary until his dismissal was confirmed by Parliament.
However, the court did not buy that argument, ruling that Jiba had failed to show she has a clear case not to be removed by the President prior to the conclusion of a parliamentary process.
Judge Robert Henney said Jiba’s argument on the interpretation of the section of the NPA Act that governed her removal was wrong.
‘The wording in my view is clear,’ said the judge, according to the Mail & Guardian. The judge said it was clear from the wording, ‘and the manner in which the entire section has been constructed’, that the Act envisages two separate procedures – one by the President and one by Parliament.
‘This section does not give the power to suspend or remove to any other institution other than the President. The President is charged with the exclusive power to suspend or remove the NDPP or DNDPP.’
The Act did not say the removal was conditional upon the approval of Parliament, he said. It was only after the removal, that Parliament’s role kicked in, he said.
‘The wording is clear; Parliament’s function is not to remove but to restore,’ he held.
Henney was careful to steer clear of any pronouncements on Part B of the case – in which Jiba seeks to permanently set aside her removal, challenging the constitutionality of the NPA Act and to set aside the Mokgoro inquiry – but he said Jiba had not made out a case that the President and the NPA had acted unconstitutionally in removing her prior to the parliamentary process.
To reinstate her, when she had failed to show she had a clear right to reinstatement, would be to breach the separation of powers – as ‘it is only Parliament that can reinstate or restore her’.
Jiba’s lawyer Zola Majavu said they would respond once they had studied the judgment.
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