Johannesburg - Former Crime Intelligence boss Richard Mdluli wants to return to his position and Police Minister Nathi Mthethwa is against the idea.
The Sunday Independent understands that the top spy is trying to force Mthethwa to allow him to return to duty – in blatant contravention of a court order that prohibits Mdluli from working in the police.
His argument, it is claimed, is that he has not been charged with any wrongdoing and should be able to head the unit.
Mthethwa, however, is said to be reluctant to grant the cop his way, citing the court interdict granted to the lobby group Freedom Under Law (FUL) in the Pretoria High Court last year. Judge Ephraim Makgoba interdicted Mdluli from “discharging any function or duty as a member and senior officer of the police”. National police commissioner Riah Phiyega and Mthethwa are both interdicted from assigning any function or duty to Mdluli.
Mdluli is scheduled to return to the high court on September 11 for the full review granted to Freedom Under Law.
Last week, the group filed its latest replying affidavit in the review application which, if granted, could result in Mdluli facing both criminal and disciplinary proceedings.
In the past two years Mdluli has faced a litany of charges including murder, fraud, money laundering and defeating the ends of justice.
In his judgment last year Judge Makgoba said the allegations against Mdluli were “no ordinary allegations of misconduct… (but) serious criminal actions which go to the fabric of public order and security”.
“While these allegations remain unresolved (Mdluli’s) very presence in the senior echelons of the SAPS will necessarily erode the function he and SAPS as a whole are entrusted,” said Judge Makgoba in his judgment.
But talk within the intelligence community is rife that Mdluli could be returning to the police within weeks.
The Sunday Independent was unable to reach Mdluli. His attorney, Ike Motloung, said he had no comment.
However national SAPS spokesman Solomon Makgale this week denied that Mdluli was back at the office or that he had been deployed to Mpumalanga.
Mthethwa’s spokesman Zweli Mnisi denied that Mdluli had contacted or spoken to Mthethwa, saying the minister was not involved in any operational matters of the SAPS.
“As far as the minister knows, General Mdluli remains under suspension and that is the matter being handled by the national commissioner. There has not been any meeting or correspondence between Mdluli and the minister, there has not,” said Mnisi.
On Sunday Mnisi said Mdluli's matter was a pure management issue which the minister would not interfere with.
"If general Mdluli has any issues to discuss... he would go to his immediate boss."
If Mthethwa got involved it would be interfering, said Mnisi.
But two independent sources, who cannot be named as they are not mandated to speak on the matter, have confirmed that Mdluli would return. The two – as well as a third source, who did not wish to be named for fear of reprisals – confirmed a fight between Mdluli and Mthethwa.
Elaborating on the nature of the fight, one of the sources in the intelligence community said Mdluli was using his knowledge of the security upgrades at Mthethwa’s home as a weapon in his fight with the minister to get back into the police service.
“The Hawks investigated Nathi Mthethwa’s wall. Mdluli still has a network there. They are the ones who built the wall,” he said.
Last year Auditor-General Terence Nombembe found that Crime Intelligence slush funds had been used to build a wall around Mthethwa’s private home.
However, he ruled that there was no evidence to show that Mthethwa knew the wall was built using slush funds.
Another source said Mthethwa believed that Mdluli had prompted the investigation and that it had led to the breakdown in their friendship.
A decision by Mthethwa to allow Mdluli to return to the police would be seen as his patching up the rift in their friendship.
Mdluli, who became head of intelligence in July 2009, first faced charges of murder, intimidation, kidnapping, assault, and defeating the ends of justice in March 2011 after he was linked to the death of his lover Tshidi Buthelezi’s husband, Oupa Ramogibe.
In May 2011, Mdluli was suspended and four months later, charges of fraud, corruption, theft and money laundering were added to his docket – all linked to his alleged abuse of the Crime Intelligence slush fund.
But by December 2011, the fraud-related criminal charges were withdrawn. The murder-related criminal charges were withdrawn by February 2012. Mdluli no longer faced disciplinary charges and he was reinstated on March 31, 2012.
Two months later, however, disciplinary charges were reinstituted against Mdluli and by the end of May 2012, Mdluli was suspended for a second time. Mdluli overturned his suspension in the labour court in June 2012 but this decision was set aside.
FUL is however arguing that Mdluli must face both the criminal and disciplinary charges.
In its review, which will be heard next month, Freedom Under Law wants the court to set aside:
* The decision taken by the head of the specialised commercial crime unit on December 6, 2011 to withdraw charges of fraud, corruption and money laundering against Mdluli;
* A decision made on February 12, 2012 by the acting national director of public prosecutions to withdraw criminal charges of murder, kidnapping, intimidation, assault and defeating the ends of justice against Mdluli;
* Phiyega’s decision on February 29, last year, to withdraw disciplinary charges against Mdluli, and;
* a decision by Phiyega one month later to reinstate Mdluli as crime intelligence head.
In its replying affidavit filed last week, Freedom Under Law’s chairman Judge Johan Krieglerhad argued that although Mdluli was suspended more than a year ago, in that time no progress appeared to have been made in finalising the alleged disciplinary process.
Phiyega was not being candid with the court as neither the disciplinary charges against Mdluli nor the notice of suspension was before the court, said Kriegler.
“She has not yet provided the court with a single circumstance to explain what General Mdluli’s alleged disciplinary transgression were, nor what has been done pursuant to such allegations.”
Kriegler dismissed arguments that Mdluli’s suspension was “purely a labour dispute”, saying that it ignored the legitimate public interest in the matter – a dispute between a government entity and the citizens to whom it was accountable – which affected the security of the state.
That Mdluli was charged and suspended after Freedom Under Law instituted its court case in May last year was evidence the proceedings were justified and the decision to withdraw disciplinary proceedings and reinstate Mdluli was flawed, said Kriegler.
Unless Phiyega produced the charges Mdluli would face, there was no evidence that the charges had been reinstated, said Kriegler. The inquest cleared Mdluli of any involvement in Ramogibe’s death.
Sunday Independent, Sapa