Pretoria - A Pretoria High Court judge has washed his hands of the Richard Mdluli leave to appeal application after storming out of court following an altercation with a senior advocate representing police commissioner Riah Phiyega over whether the commissioner wanted Mdluli to return to office.
Judge John Murphy was due to hear an application by the National Director of Public Prosecutions (NDPP), the SAPS and Mdluli for leave to appeal against the judge’s order last month that all criminal charges against Mdluli be reinstated and that the disciplinary hearing against the former crime intelligence head had to go ahead.
Earlier, the judge had ruled that Mdluli may not return to office, pending the outcome of the hearing and criminal cases against him. But once an appeal is on the cards, it suspends the original order, unless ruled differently by the court.
Things started off amicably on Thursday morning, with the judge indicating that he was sympathetic towards the application for leave to appeal.
Freedom Under Law (FUL), which initiated the application for Mdluli to face the charges, however, said it too did not oppose the leave to appeal, provided that an interdict preventing Mdluli from returning to work pending the outcome of a possible appeal, formed part of the court order.
William Mokhari, SC, acting for the SAPS, vehemently opposed this and called the application an “absurdity”. He said there was no proper application calling for an interdict before court and that the procedures in this regard were irregular.
He pointed out that another judge last year made an interim order interdicting the SAPS from reinstating Mdluli, pending the outcome of the main application. Mokhari said Judge Murphy could not now revisit the issue, since the interim order had lapsed when the judge last month gave his order.
The judge then wanted to know whether the police commissioner was opposed to the interdict remaining in place pending an appeal.
Then sparks flew when Judge Murphy asked advocate Mokhari: “Does the commissioner want General Mdluli to return to work?”
Mokhari: “This is presumptuous and I will not respond to the question.”
Judge: “How dare you say this to me. Does the commissioner intend to reinstate General Mdluli?”
Mokhari once again said it was presumptuous, since it puts the “cart before the horse”, and it would be improper for him to answer the question.
“I am not going to answer that,” the advocate said.
Judge Murphy ordered the advocate to sit down. “You are finished with your submissions,” the judge said. Mokhari, however, responded that he would not sit down, because he had another submission to make, which he was entitled to do.
But the judge repeatedly told him to “take a seat”, as he did not wish to hear him anymore.
Mokhari still refused to sit down, on which point the judge - evidently hot under the collar - adjourned the court and stormed out.
This was met by a stunned silence in court, with counsel looking at each other in disbelief. An advocate asked his colleague whether “he has ever seen this kind of exchange in court before”. The legal teams followed the judge and had a short exchange with him in the corridor behind the court, before returning.
They were called to meet Deputy Judge President Aubrey Ledwaba during the tea break. Following a break, Judge Ledwaba, instead of Judge Murphy, appeared on the bench and postponed the leave to appeal the application indefinitely. He did not explain in open court why he had stepped in.
He said the application to interdict the SAPS from reinstating Mdluli pending the possible appeal, would be heard together with the leave to appeal.
Judge Ledwaba said he wanted to place on record that all the parties concerned met during the break in the boardroom, and that the matter would be postponed to give the legal teams the opportunity to file further papers in both applications.
Counsel for FUL wanted to know from Judge Ledwaba whether the interdict preventing Mdluli from returning to office in the interim, still stood. The judge responded that since none of on Thursday’s applications had been heard yet, the interim order remained in place.
Mokhari, at this point, said he wanted to make it clear that Mdluli had not asked to return to work, nor was he invited to come back. “If something changes, FUL can exercise their rights in law,” he said.
One of the lawyers later told the Pretoria News that Judge Murphy wouldn’t return to hear the matter. “He has recused himself,” the lawyer, who attended the meeting behind closed doors in the boardroom, said.
Pretoria News