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A lawyer and a judge in the High Court in Pretoria clashed on Thursday over the question of whether former police crime intelligence boss Richard Mdluli should return to work.
Judge John Murphy was hearing an application by the SA Police Service and the National Director of Public Prosecutions for leave to appeal against an earlier ruling in favour of lobby group Freedom Under Law (FUL).
The ruling set aside a decision to withdraw criminal and disciplinary charges against Mdluli.
FUL has said it will not oppose the application provided an interdict preventing Mdluli from returning to work forms part of an order granting leave to appeal.
William Mokhari SC, for the SAPS, argued on Thursday that the application by FUL did not follow court process, and needed to be filed correctly with the court.
“I have never heard of an application, which is a substantial application like this... where a judge is already chosen,” he said.
“This is an application which relates not to the order which has been granted by your lordship. It is an application which relates to an order granted by your brother [Judge Makhoba in 2012].”
Murphy asked if the national police commissioner was opposed to the interdict being kept in place.
Mokhari answered that the interdict had already lapsed.
“Does the commissioner want General Mdluli to go back to work?” Murphy asked.
Mokhari replied: “That is presumptuous and I will not respond to the question.”
Murphy then asked: “How dare you say that to me Mr Mokhari? You are obliged to respond to me.”
“It is presumptuous because it puts the carts before the horses. It will be improper for me to respond to that question,” Mokhari said.
Murphy told Mokhari to “take a seat” and that he did not wish to hear him anymore. Mokhari said he was not done arguing and refused. Murphy adjourned the court.
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 The charges of fraud and corruption were also later withdrawn.
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.
Murphy, in his September ruling, criticised the decision to withdraw fraud and corruption charges against Mdluli, saying it was “illegal, irrational, based on irrelevant considerations and material errors of law”.
He said the withdrawal of disciplinary charges against Mdluli by then acting national commissioner of police, Lt-Gen Nhlanhla Mkhwanazi, and his reinstatement, were “in dereliction of his [Mkhwanazi's] constitutional and statutory duties”. - Sapa