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Pretoria - Arguments advanced in seeking a review and the setting aside of the decision to withdraw charges against Richard Mdluli were based on hearsay, the High Court in Pretoria heard on Thursday.
William Mokhari SC, representing the police, said lobby group Freedom Under Law (FUL) had formulated its court application based on hearsay in newspapers.
“It is now common knowledge that reliance by the applicant (FUL) on information from persons who are unable to confirm the correctness thereof or the veracity of the information is in fact counter-productive,” Mokhari said in written heads of arguments presented to the court.
Judge John Murphy asked Mokhari to specify the hearsay and the publications.
Mokhari submitted that the police and Mdluli had an employer/employee relationship, and that the Labour Court would be the appropriate forum to settle issues between them.
“The relationship between the (SA Police Service) and the fifth respondent (Mdluli) is governed by the employment contract concluded between the parties. In the absence of that contract, this court cannot assume jurisdiction on the matter, which emanates from an employment relationship.”
Earlier, Laurance Hodes SC, representing the national director of public prosecutions (NDPP), contended that instead of “marching off to court”, FUL should have sought the review from the NDPP.
Hodes said the Mdluli matter had been provisionally withdrawn, which did not amount to a discontinuation of the prosecution process.
Decisions on whether to prosecute lay with the NDPP, not with courts, Hodes argued.
Judge John Murphy expressed reservations about Hodes' assertion.
“So you can provisionally withdraw a matter for 25 years and that is fine?” he asked.
Murphy said that if courts could not intervene, it would enable corrupt prosecutors to get away with it, as cases would be taken off the roll.
FUL brought an application for a review and setting aside of the decision to withdraw criminal and disciplinary charges against the controversial former police crime intelligence head.
Mdluli was suspended amid charges of fraud and corruption, and charges relating to the murder of his ex-lover's husband.
An inquest cleared him of any involvement in the murder.
The charges of fraud and corruption were also later withdrawn by the National Prosecuting Authority.
He was reinstated, but was again suspended in 2012 pending the court application to review the withdrawal of the criminal and disciplinary charges against him.
The High Court in Pretoria reserved its verdict on Thursday.
However, Judge John Murphy said he appreciated the significance of the matter and would ensure his judgment was communicated soon.
"I appreciate fully that this is a matter that should be dealt with sooner rather than later," he said.
"I hope to get a judgment to you, probably in the course of the (court) recess or shortly thereafter."