Private Bag X1000
Copied to Minister Masutha
22nd July 2015
Dear Mr President,
RE: Your failure to institute an enquiry into the fitness for office of three Deputy National Directors of Public Prosecution in order to ascertain whether or not they should be removed from office
1. We have no reason to doubt that you have been aware for some time of the decisions of the Gauteng North Division of the High Court and the Supreme Court of Appeal in the review application brought by Freedom Under Law against the National Director of Public Prosecutions and others and which related to the decisions not to proceed with the prosecution of, and disciplinary proceedings against, Mr Richard Mduli. Both courts were scathing in their criticism of the conduct of Advocates Nomgcobo Jiba, Sthembiso Lawrence Mrwebi, and Sibongile Mzinyathi, all of whom are Deputy National Directors of Public Prosecutions. The findings included findings that these persons were not candid in their testimony, and did not conduct themselves in accordance with the requirements of their office. These findings appear most conveniently in paragraphs  (Adv Mzinyathi),  (Adv Mrwebi) and  to  (Adv Jiba) of the judgment of Murphy J; and in paragraph  of the judgment of Brand JA (Adv Mrwebi).
2. We refer you to the latest annual report of the recently removed National Director of Public Prosecutions. It appears there from that:
2.1 The findings of the courts were materially confirmed by an enquiry undertaken at the instance of the CEO of the National Prosecuting Authority under the chairmanship of former Constitutional Court Judge Zac Yacoob;
2.2. The NDPP has referred these matters to you, both directly and via the Minister of Justice, with the request that you take action against these persons in terms of your powers under s 12(6) of the National Prosecuting Authority Act, 32 of 1998
3. In the light of the above facts, there is, clearly we suggest, a substantial doubt as to the fitness for office of these three persons. We therefore write to request you to act appropriately on the judgments and reports referred to above. Furthermore, given the gravity of the complaints, we would suggest that there is little doubt that these persons should be suspended from their positions pending the outcome of an enquiry in terms of s 12(6) of the Act, unless you are able to furnish us with an acceptable explanation for your failure to do so.
4.We respectfully submit that as head of the executive branch of government under section 85(1) of the Constitution and having due regard to the provisions of section 179(1) of the Constitution read with section 84(2)(e) thereof, it is your legal duty, within your powers and a part of your functions and responsibilities to take the steps which the former NDPP has requested you take.
5. As it appears that there may be a breakdown in communication with the Minister of Justice and Correctional Services, who has final responsibility over the prosecuting authority in terms of section 179(6) of the Constitution, we are copying this letter to him with a view to restoring communications within the cabinet and ensuring that all concerned are aware of the contents of this letter and the reports and judgments referred to in it.
6.We need hardly remind you that all organs of state are bound, in terms of section 165 of the Constitution, to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.
7. In this instance the effectiveness of the courts has been prejudiced by the failure to act on the judgments referred to above. This is inconsistent with the constitutional provisions quoted in paragraph 4 above and is invalid in terms of section 2 of the Constitution.
8. Kindly let us hear from you as to what you propose doing in the circumstances set out above and in the reports and judgments to which we have referred. Should we not hear from you by 6 August 2015, our rights to institute legal proceedings against you to compel compliance with your constitutional and legal obligations to ensure that the country has a national prosecuting authority that exercises its functions without fear, favour or prejudice, as required by section 179(4) of the Constitution, are reserved.
9. Should we not hear from you by 6 August 2015, our rights to institute legal proceedings against you to compel compliance with your constitutional and legal obligations to ensure that the country has a national prosecuting authority that exercises its functions without fear, favour or prejudice, as required by section 179(4) of the Constitution, are reserved.
10. Should it become necessary to litigate, we can see no good reason at this stage as to why the taxpayer should be mulcted in costs in litigation aimed at getting you to carry out your constitutional obligations properly and rationally. We accordingly put you on notice that we will request costs de bonis propriis against you in such proceedings as we may be advised to launch.
11. We trust that it will not come to that and that we can expect you to do what the courts and reports indicate should have been done in relation to the three deputy national directors of public prosecutions identified in the judgments and reports. Please acknowledge safe receipt of this letter and act to ensure the integrity and independence of the national prosecuting authority without delay.
Paul Hoffman SC
IFAISA (Accountability Now)