NPA institutes disciplinary action against prosecutor in Sibanyoni case

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[00:00:00]And this is a top story this hour. The NPA has instituted disciplinary action against prosecutor Muselin Daba after he failed to appear in the case involving prominent businessman Joe Ferrari.

[00:00:11]>> The Gua Fontaine Magistrate's court heard that a colleague informed the magistrate that Indaba was on his way but no time frame was provided prompting the court to issue a warrant of arrest in his absence. and the magistrate ruling that daba's conduct would be reported to the legal practice council and the office of the national director of public prosecutions and as a direct result the case against sibon and three co-acused was struck off the role >> I like section 342A because it prevents undue delays in the courts And I think this is one classic case of undue delay of a proceedings and I'm inclined therefore as I do now strike the matter of the role in terms of section 342A subsection 3 C.

[00:01:19]>> All right. So as you heard the the following that the national prosecuting authority is saying that it is instituting disciplinary action against the prosecutor convicted of contempt of court in the guaca fontaine magistrate's court. This follows a court appearance of the accused persons in the matter of state vess Johannes and others wherein the accused faces charges of extortion and money laundering. Special Director of Public Prosecutions Advocate Munaga joins us now. Good evening to you Advocate Maga and thank you for coming through. In simple terms, what happened?

[00:01:55]>> Um, good evening uh to SABC viewers.

[00:02:00]This is unprecedented.

[00:02:03]NPA was established on 1 August 1998 and it has never happened in the history of the prosecution that a prosecutor does not arrive in court with no explanation up to now and he is convicted of contempt of court. A warrant of arrest is authorized against him. now is sought after by law enforcement resulting in a case that involve extortion and money laundering which are serious offenses to be struck off the role in circumstances where once you invoke section 242 capital A of the criminal procedure act. It can only be reenrolled or reinstated upon written authorization by the director of public prosecutions in the division under whose jurisdiction the matter fall. It is on that basis that in the absence of any explanation up to now the national director had an engagement with the director of public prose in Bumalanga and labor relations unit and a decision was taken to suspend the prosecutor and to institute disciplinary action against him. Now there are two uh interests that you need to balance. You've got a prosecutor who's now been convicted of condemned of court in an unprecedented scenario. You have accused persons that now have walked free.

[00:03:28]>> Yeah.

[00:03:28]>> The matter struck off the role. What do you then do?

[00:03:31]>> Mhm.

[00:03:32]>> In as much as right now the difficulty we have is that we don't have an explanation of why the prosecutor did not arrive in court and therefore prose the NPA had to act on two issues. the issue that relates to the prosecutor being convicted and the um knock on effect on the case itself.

[00:03:54]>> Yeah. So, you're saying that you don't have an explanation, but what lines of inquiry are you following? I imagine that it starts with that prosecutor's manager picking up the phone, trying to get hold of him. uh colleagues doing the same >> perhaps even the uh director of public prosecutions in Bumalanga even trying that. What has that revealed also in addition with what he had foregrounded in the hearing uh on Friday last week?

[00:04:24]>> The difficult is that we are not privy to the proceedings uh that unfolded on Friday. We only confronted with what happened today and inquiries have been made by the national office.

[00:04:38]Unfortunately, we could not get any information as to his whereabouts, which was what culminated in the decisive steps that have been taken by the NPA.

[00:04:50]And I'm saying to you in the absence of any explanation if you are in our position confronted with a catastrophic scenario of accused persons walking in circumstances where the merits of the case against them were not validated.

[00:05:08]You would act in the manner in which we had to act.

[00:05:10]>> But hang on. What do you mean you're not privy to uh the proceedings? They were live. They were broadcast live. That's how we came to know that his explanation was that he's got another matter on Monday and was saying that the words that he used were virtually impossible for me to be present here in court.

[00:05:25]>> I remember told to us we we lawyers we deal with that which we which is before us >> and I was not watching TV on Friday. I'm confronted or we are confronted as the NPA with what happened and transpired today.

[00:05:39]>> And there was an indication that he said he was on his way to court. He's still busy with paperwork. But at the time the proceedings uh were unfolding or resumed he was not there which resulted in a conviction for condemned of God warrant of arrest and the matter being unfortunately struck off the road.

[00:05:59]>> So let's run through a few scenarios.

[00:06:01]Are you concerned for his health that he could be in a situation where he's not able to attend to anything because he's not well? Is that a possibility? You see the thing is if you ask me to explore possibilities you are asking me to speculate.

[00:06:15]>> We are lawyers >> in the absence of evidence to the contrary you deal with that which is before you which is a conviction of a prosecutor for content of court. A warrant of arrest issued is sought by law enforcement. a case that has been struck off the roll and in the eyes of the public they are saying what is happening in the NPA of course there may be an explanation but at the moment there is no explanation >> but the speculation you can't avoid and I don't know how you deal with it you probably have picked it up already people believing that there's foul play that perhaps his absence is not innocuous that there could be something else at play uh that whose ultimate goal could eventually be to scaper the prosecution. What do you say to those who hold that view?

[00:07:04]>> We we hope not and we will cross that bridge when we get there. Unfortunately, action has to be taken because we have confronted we're confronted with a situation where we're not getting an explanation and you yourself as a manager if you're not getting an explanation you take action because the difficult it is it would have been different if the case was postponed to the following day. We've got accused that we believe we have a formidable case against that are now back home in circumstances where we said to the nation there's a formidable case hence we're opposing bail the bail proceedings were supposed to continue but national director is saying be that as it may we please exercise some patience because internally we're dealing with matter externally the acting DPP there is currently engaging law enforcement with a view to facilitate reenrollment of of the matter. But you are my learned friend. You know the law. We have to comply with the written authorization requirement. Yes.

[00:08:04]>> And for that to happen, a prosecutor need to brought in, stud the docket and make a determination if the matter is ripe for reenrollment. It could either be a rearrest or summons that are served within a period of time. At >> the very least, this has set you back a couple of weeks if not a couple of months in terms of the Jose Boni and others matter. advocate motivation with him. He says, "Look, it's disappointing council, but it's not a setback in the sense that we are legally empowered and authorized to to to explore reinstatement, but we need to first obtain a written authorization from the DPP who has the powers to do so. It's it's a safeguard by the presiding officer." But let me also take it further to last and also um tease you on this as a lawyer. We look at the order and you invoked for to capital A when there is a possibility of a finding that there's unreasonably delay. The first appearance was on the 14th of May. Today is the 18th. It's a period of 10 days.

[00:09:11]>> Now one wonders if indeed can we safely say there was unreasonable delay. Was this the only legally permissible mechanism that the magistrate had to invoke in circumstances of this nature?

[00:09:25]That's a homework for us. That's what we're reflecting on. I'm also giving you that as a homework.

[00:09:30]>> But subtle therein is is is is a sense that you're not entirely convinced that this was the most reasonable way to proceed with it >> in so far as the striking of the wrong.

[00:09:42]>> We we we we are really uncertain on that. It's a matter that we're reflecting on as lawyers to say was this a legally permissible mechanism >> to invoke that >> was the prosecutor working alone.

[00:09:54]>> I'm I don't have those details at the moment >> and and the reason I ask is that you've had a few incidents um that have affected to a certain extent public perceptions um of the uh your readiness and ability to prosecute especially these high-profile matters. One needs to go back just to the Omatosha matter as an example where the suggestion was that very early on it became clear that there were problems in the conduct of the prosecution um and you could have intervened earlier on. I know that you wanted to reserve questions of law, but we are not discussing the omocial matter specifically, but we are wondering in high-profile cases where the stakes are this high, should someone not have been um overseeing uh the prosecution over and above uh the the main prosecutor in court. The difficulty with this um discussion now Tulas is that as the national office even though the NTP has overseeing um powers in matters of this nature because the buck stops with him we don't have a comprehensive report and an explanation of what happens in this matter the allocation of the prosecutor the assigning thereof what informed it and all of that. So it's going to be difficult for me in particular specification on this case but broadly we have adopted a very uh aggressive stance that is made up of a meticulous strategy that is employed in all these high-profile sensitive cases that >> you would agree that this this undercuts that message at the very least especially your emphasis on organized crime at the moment. because that really is where the conversation is. It's particularly under focus and then you have an incident such as this.

[00:11:50]>> Like I'm saying to you, it's quite disappointing, but it's not a setback.

[00:11:55]And you know for a fact that right now we are reinstating shortly the Nulan case.

[00:12:02]>> Yes, >> we will also be reinstating the Bongo corruption case after we won at the SCA.

[00:12:08]Both matters which are very important.

[00:12:11]So the issue of ineptitude or doubt on the competency of our prosecutors does not arise in the circumstances because remember I said the magistrate did not delve into the merits of this particular case and no one can stand and say there's no case against theirs because those merits were not ventilated.

[00:12:30]>> I hear you. All right. Thank you for coming through and for sharing those insights coming through from the national uh prosecuting authority.

[00:12:36]That's special director of public prosecutions advocate Munaga just weighing in there and giving you the sense at least from the NPA's perspective of the events that you have seen coming through from the Guaca Fontaine Magistrate's Court. You're watching the full view. We'll be back with your comments and they center around that story. what you've heard about the incident that happened and the uh no show on the part of the prosecutor and the subsequent steps taken by the court and then taken by the NPA