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Pretoria - Courts do not have the discretion to interfere with the independence of the prosecuting authority in determining whether to prosecute a person or not - the order that all charges against Richard Mdluli be reinstated infringes on his constitutional rights to a fair trial.
These are two of the reasons advanced by the National Director of Public Prosecutions (NDPP) and the head of the Specialised Commercial Crime Unit in its application for Pretoria High Court Judge John Murphy to grant it leave to appeal against his earlier judgment.
The judge, among others, ordered that the dropping of fraud and murder charges by the prosecuting authority against the controversial former crime intelligent boss was unlawful and that the charges had to be reinstated immediately .
The order followed an application by Freedom Under Law (FUL). It had asked that Mdluli be prosecuted without delay and the disciplinary hearing against him continue.
The NDPP will ask the court for leave to appeal against the entire judgment before the Appeal Court.
The prosecuting authority stated numerous grounds for appeal and cited at least 52 points where it felt the judge erred in law in coming to his findings. Apart from this, the NDPP said, there were also practical considerations arising from the judgment and subsequent orders.
In papers filed at court on behalf of the NDPP, it is stated that courts all over the world are reluctant to interfere with a prosecuting authority’s bona fide exercise of its discretion to prosecute or not. It is said that courts should interfere only in highly exceptional cases and should not interfere in the independence of the prosecuting authority.
The NDPP said Judge Murphy was wrong in concluding that a court could review a decision to withdraw charges, arguing that a decision to withdraw charges is by its nature provisional and not susceptible to judicial review.
The withdrawal of charges is not the same as the discontinuation of a prosecution, the NDPP said.
The judge also failed to take the practical implications of his order into consideration, it said, including on the daily functioning of the office of the NDPP and the conduct of criminal prosecution in the future.
Important factors such as the availability of evidence, the quality and admissibility of such evidence and the prospects of a successful prosecution were not considered by the judge, it was argued.
Judge Murphy did not have access to the dockets and could thus not make a finding on the merits of these prosecutions. He is thus unaware of the nature of the evidence against Mdluli and was not in a position to order his immediate prosecution.
“The judge seems to have assumed that the cases are ready to proceed to trial, when it in fact depends on how effectively the police investigate these matters.”
The NDPP said Mdluli was entitled to a speedy trial. If his case was placed on the roll without the investigation having been completed, he would be entitled to plead and ask for a court verdict, without delay.
The State may be ordered to proceed or to close its case and Mdluli may then be found not guilty and be acquitted. “The order of the learned judge infringes on the constitutional rights of Mdluli to a fair trial.”
The application was premature as the NDPP only provisionally withdrew the charges. The judge should have referred the matter back to the NDPP to make a final decision, it is stated.
FUL had not yet filed answers in opposing the application.