Pretoria - The dropping of charges against controversial former crime intelligence head Richard Mdluli was not only unlawful, illegal and invalid, but irrational.
All criminal charges must be reinstated and Mdluli prosecuted diligently and without delay, a Pretoria High Court judge ordered on Monday.
Judge John Murphy launched a scathing attack on officials in the National Directorate of Public Prosecutions (NDPP) for dropping the string of charges, which included fraud, corruption and murder, against Mdluli in the first place.
He also had harsh words for the then-acting police commissioner, Lieutenant-General Nhlanhla Mkhwanazi, for dropping the disciplinary charges against Mdluli.
Mkhwanazi had clearly acted on instructions “from beyond” and he undermined the integrity of the SAPS, the judge said.
“His conduct could serve only to damage public confidence in the SAPS, particularly where no reasons were advanced for that decision and in the face of public disquiet about possible political interference.”
The judge also set aside the decision to reinstate Mdluli as head of criminal intelligence in the SAPS.
He further ordered that the disciplinary proceedings – which had been withdrawn earlier against Mdluli – proceed without delay.
The judge said the automatic consequence of his order was that the charges against Mdluli would be revived.
Freedom under Law (FUL), which instituted the application against the prosecuting authorities and Mdluli, had asked for an order that Mdluli be prosecuted without delay.
Granting the application, the judge said: “Given the respondents’ (NDPP and police) equivocal stance and their dilatory and obstructive approach to these proceedings, it is necessary to expedite the prosecution, not only in the public interest but also in the interest of Mdluli, who cannot resume his duties while the charges are pending.”
Counsel for the NDPP asked that the criminal charges be referred back to the national directorate, as there might be issues relating to evidence and possible defences that could make a prosecution difficult.
But Judge Murphy said: “Where there is a will, there is a way.”
The judge said he was confident justice would be done in the hands of skilled prosecutors, defence counsel and an experienced trial judge.
“More than ever, justice must be seen to be done in this case. The NDPP and DPP have not demonstrated exemplary devotion to the independence of their offices, or the expected capacity to pursue this matter without fear or favour.”
Remitting the matter to the NDPP was not in the public interest. “The sooner the job is done, the better for all concerned. Further prevarication will lead only to public disquiet and suspicion that those entrusted with the constitutional duty to prosecute, are not equal to the task.”
The same could be said regarding those responsible for the disciplinary process, the judge said.
Judge Johann Kriegler, presently in the Maldives, hailed the judgment as a huge victory.
“It is a victory not only for FUL, and our pro bono legal team, but for the rule of law and therefore for the people of our country,” he said.
“The judge has made plain that doubtful decisions in high places taken behind closed doors and against good advice are subject to judicial review.
“He found that the dropping of the charges was ‘irrational and for no proper purpose’ and that his (Mdluli’s) reinstatement constituted dereliction of duty on the part of the acting commissioner of police and ‘undermined the integrity of the SAPS’.
“We could not have wished for a more insightful judgment.”
The NDPP says it is studying the judgment before deciding on the way forward.
The judge also did not mince his words over the conduct of the head of the Specialised Commercial Crimes Unit in the National Prosecuting Authority (NPA), advocate Lawrence Mrwebi, in withdrawing the fraud and corruption charges against Mdluli. The judge said Mrwebi had no power to withdraw the charges and this decision was so unreasonable that no reasonable prosecutor could have taken it.
The decision by the Director of Public Prosecutions for South Gauteng, Andrew Chauke, not to proceed with the murder, kidnapping and assault charges against Mdluli also drew criticism from the judge.
It was “puzzling” that Chauke himself had decided there was no evidence linking Mdluli to murder. This was up to a court to decide.
Acting prosecutions boss Nomgcobo Jiba was also not spared a tongue lashing. The judge said that, given the high profile and the implications of this matter, the NDPP should have reviewed the decision not to prosecute Mdluli.
Despite requests by NPA advocate Glynnis Breytenbach, who had been handling the case against Mludli, for a review of the decision, Jiba did not do this, nor did she say why she was not doing so, he said.
Jiba’s conduct was inconsistent with the duty imposed on public functionaries to be accountable and transparent, the judge said.
In opposing the present application, Jiba had said simply that the application was premature.
Judge Murphy said she should have assisted the court by reviewing the decisions and disclosing her position regarding these issues.
“She has not pronounced at all on the decisions or the evidence implicating Mdluli. Her stance is technical, formalistic and aimed solely at shielding the illegal and irrational decisions from judicial scrutiny.”