Richard Mdluli’s decision to throw down the gauntlet over his suspension will be pointless as he is already interdicted from performing police duties, according to a submission on Thursday by former acting national police commissioner Nhlanhla Mkhwanazi.
Mkhwanazi was responding to Mdluli’s second Labour Court application challenging his suspension.
Mdluli wants the court to lift a suspension that was imposed on June 3, saying it was an unlawful decision that contravened the SAPS Discipline Regulations of 2006 in that he was denied an opportunity to respond to the allegations against him.
Mdluli, on his third suspension, had challenged his earlier suspension in the Johannesburg Labour Court. On Friday, June 1, the court lifted that suspension.
However, Judge Edwin Molahlehi’s decision was rescinded in the same court two days later after the police launched an urgent application challenging the ruling.
In supplementary affidavits filed in the Labour Court on Thursday, Mkhwanazi used last week’s ruling in the Pretoria High Court to dismiss Mdluli’s latest application as a futile exercise.
The Pretoria High Court interdicted Mdluli from performing any duties as a member and senior officer within the police service following Freedom Under Law’s (FUL) application to have him removed from office pending an application to review the National Prosecuting Authority’s decision to withdraw criminal charges against him, and a decision by the police to withdraw disciplinary procedures against him.
The order made last week also interdicted the national police commissioner and the police minister from assigning any duties to Mdluli.
“The urgent application launched by the applicant has become academic in that it has been overtaken by events (FUL application),” said Mkhwanazi.
“The effect of the order of the high court is that it has effectively confirmed the applicant’s suspension from duty which I had already imposed on him.”
He argued further that the Labour Court was precluded from deciding on matters already decided by “another court of similar status and competence”. In explaining his reasons for suspending the former crime intelligence head, Mkhwanazi said he had weighed the senior position Mdluli held against the “serious allegations” he faced.
“The suspension of the applicant by myself (Mkhwanazi) is a precautionary measure, taken in terms of the police Discipline Regulations 2006, pending the investigation and possible disciplinary steps against the applicant.
“Because of the senior position held by the applicant… and the sensitive nature of the position he occupies, with the reasonable apprehension of interference with the investigation, or potential witnesses, it was imperative that I place the applicant on suspension,” he said.
Mkhwanazi said Mdluli had been hogging the media for all the wrong reasons and putting the police service into disrepute.
“It is my respectful submission that until the disciplinary inquiry is finalised, and the review application before the high court is also finalised, the applicant’s suspension should remain,” he said.
Mdluli’s attorney, Graham Moshoana, could not say on Thursday if they would be filing their responding affidavits on Monday or withdrawing the matter based on the high court decision.
“Firstly I have not read their (State) affidavit. Secondly, I don’t have any instructions to the contrary (to withdraw),” said Moshoana.
His ‘transgressions’ in office
The disciplinary inquiry was to look at 10 charges of misconduct listed on a “notice to appear at a disciplinary hearing” letter issued on June 12.
* For taking an unauthorised trip to China from November 6 to 14, 2009.
* For “wilfully or negligently” mismanaging state finances by taking his ex-wife along on a trip to China, using R53 111 from the Secret Service Account.
* Taking along a non-SAPS employee, wife Theresa Lyons, on a trip to Singapore between November 21 and 29, 2009. That trip was also not authorised and R46 809 of the Secret Service Account was used to buy a business-class ticket for Lyons.
* Hiring his former wife, Lyons and two of his children in the crime intelligence division knowing they lacked experienced for positions in a “highly specialised environment”.
* Using R150 209.12 of the secret service account for renovations to his Dawn Park home in Boksburg.
* Using R84 199 from the secret service account to fly his wife, children and parents.
* Leasing his Gordons Bay house to the crime intelligence division at R8 500 a month from February 2010 to January 2013, when the house was not used for crime intelligence purposes.