Pretoria - The High Court in Pretoria has criticised the decision by the director of public prosecutions for south Gauteng, Andrew Chauke, to withdraw murder charges against Richard Mdluli.
On Monday, Judge John Murphy’s written judgment set aside Chauke’s decision to send the matter of Oupa Ramogibe’s death for an inquest, instead of a prosecution.
“An inquest is an investigatory process directed primarily at establishing a cause of death where the person is suspected to have died of other than natural causes,” Murphy said.
“It is not aimed at establishing anyone’s guilt and could not competently do so. An inquest is no substitute for criminal prosecution because it cannot determine guilt.
“Chauke’s motive for referring the matter to an inquest is therefore dubious. The identity of the deceased was known, as was the cause of his death. The only outstanding case was the culpability of Mdluli.”
He said Chauke’s reliance on the inquest was irrational.
Ramogibe died in February 1999 after marrying Tshidi Buthelezi, the mother of Mdluli's child.
The Ramogibe family has accused the police former crime intelligence boss of killing him. Mdluli however claimed there was a plot to implicate him in the crime and that the Ramogibe family was working with the police.
Murphy said evidence against Mdluli was set out in affidavits filed at the inquest proceedings. This included affidavits from witnesses claiming Mdluli intimidated, assaulted, and/or kidnapped them.
“There are affidavits from seven witnesses who personally witnessed Mdluli threatening to kill Ramogibe, or threatening and assaulting other people,” said Murphy.
“This evidence presents a compelling prima facie case against Mdluli.”
Murphy ordered the national director of public prosecutions (NDPP) to reinstate criminal charges and national police commissioner Riah Phiyega to restore disciplinary proceedings against Mdluli.
The decision to reinstate Mdluli as head of crime intelligence was also set aside.
“The decision made on February 2012 by the first respondent (NDPP) in terms of criminal charges of murder, kidnapping, intimidation and assault with intent to do grievous bodily harm, and defeating the ends of justice, is hereby reviewed and set aside,” said Murphy.
“The decision made on March 31, 2013 by or on behalf of second respondent (national police commissioner) whereof the fifth respondent (Mdluli) was reinstated as head of criminal intelligence in the SA Police Service with effect from March 31, 2012 is hereby reviewed and set aside.”
Murphy said criminal charges should be reinstated against Mdluli without delay.
“The first and third respondents (NDPP and head of the specialised commercial crime unit) are ordered to reinstate forthwith the criminal charges which were instated against the fifth respondent (Mdluli) under case number 155/07/2011 and case number 340/02/99, and to take such steps as are necessary to ensure that criminal proceedings for the prosecution of the criminal charges under the aforesaid cases are re-enrolled and prosecuted diligently and without delay.”
The national police commissioner had to take steps to reinstate disciplinary charges against Mdluli.
“The second respondent (national police commissioner) is ordered to reinstate disciplinary charges which had been instituted against fifth respondent (Mdluli) but were subsequently withdrawn on February 29, 2012, and to take such steps as are necessary to institute or reinstate disciplinary proceedings that are necessary for the prosecution and finalisation of the aforesaid disciplinary charges, diligently and without delay.”
The application for a review and the setting aside of the decision to withdraw criminal and disciplinary charges against Mdluli was brought by lobby group Freedom Under Law (FUL).
The controversial former crime intelligence head was suspended amid charges of fraud and corruption, and charges relating to Ramogibe's murder.
The inquest cleared him of any involvement in the murder. The National Prosecuting Authority later withdrew charges of fraud and corruption. He was reinstated, but again suspended in 2012 pending FUL's application.
Murphy said: “The decision made on or about 5 or 6 December 2011, as the case may be, by the third respondent (head of specialised commercial crime unit) in terms of which criminal charges of fraud, corruption, and money laundering instituted against the fifth respondent (Mdluli) were withdrawn is hereby reviewed and set aside.”
Sapa