The Mdluli judgment: Nxasana’s first big test

When judge Chris Nicholson found, based on newspaper clippings and plausibly sounding but legally flawed reasoning, that there had been political interference in the bringing of corruption charges against Jacob Zuma, the ANC NEC, citing the judgment, “recalled” then President Thabo Mbeki and forced him to resign as president of the country. After allegations of interference in the timing of bringing the charges against Zuma came to light, the acting NDPP later decided to drop corruption charges against Zuma, citing the importance of preserving the integrity of the NPA (as well as a plagiarized judgment from a Hong Kong court).

In a meticulously argued and thorough judgment in the case of Freedom Under Law v National Director of Public Prosecutions and Others judge John Murphy made arguably far more devastating findings about the integrity and fitness for office of Lawrence Mrwebi (the head of the Specialised Commercial Crimes Unit). The judgment also raises very serious questions about the independence of then acting NDPP Nomgcobo Jiba, and Andrew Chauke (Director of Public Prosecutions –DPP – for South Gauteng) in the matter. The judgment also takes to task the then acting Police Commissioner Nhlanhla Mkhwanazi who unlawfully followed instructions from people “beyond him” to drop disciplinary charges against Mdluli.

However, perceptions (which might or might not be correct) that these leaders of the NPA and the police protected Mdluli because he is in the good books of Number 1 and that they might have been acting on instructions of people “beyond”, leads me to believe (for the time being) that no drastic action will be taken against any of the three NPA leaders fingered in this case. The then Acting Commissioner will probably also never be asked who the people “beyond” him were that interfered in the case and the Minister of Police will not be held accountable for this alleged interference. However, I do still harbour the faint hope that I will be proven wrong.

Freedom Under Law challenged the decision of Mrwebi to withdraw corruption and related charges against Mdluli; the decision of Chauke to withdraw the murder and related charges against Mdluli and decisions taken by the Acting Commissioner of Police to withdraw the disciplinary proceedings against Mdluli and to reinstate him.

The court criticised Mrwebi for not disclosing “obviously relevant documents” to the litigants, which he was obliged to disclose and found that his account of how he withdrew the charges against Mdluli was “inconsistent with the objective facts”. The court described Mrwebi’s attempt at explaining away the fact that he had in fact taken the decision to withdraw the charges without the consent of the DPP (as he is legally required to do) as “implausible and probably invented after the fact… [as] a last-ditch attempt to explain his otherwise indefensible approach.”

The court also rejected the attempt by Mrwebi to blame Glynnis Breytenbach for the fact that charges were never reinstated against Mdluli, finding that this claim was “frankly disingenuous and unconvincing, as is Mrwebi’s subsequent claim that investigations into the charges are continuing”. Mrwebi is also lambasted for ambushing the litigants by filing a further supplementary affidavit on the day before the hearing, six months late:

For reasons that should be self-evident, it is not possible to attach much weight to this evidence…. Mrwebi, by his own account, and for reasons he does not explain, sat on this information for three months before disclosing it to the court on the day before the hearing. The averments accordingly can carry little weight on the grounds of unreliability. The conduct of [Mrwebi], again, I regret, as evidenced by this behaviour, falls troublingly below the standard expected from a senior officer of this court.

The court therefore found that Mrwebi’s withdrawal of corruption and related charges against Mdluli was arbitrary and irrational and ordered their immediate reinstatement. The terms in which it did so completely destroys the credibility of Mrwebi and unless the judgment is overturned and the findings of fact reversed, Mrwebi could not possibly continue doing his job without the perception taking hold that some leaders of the NPA are dishonest and wholly lacking in integrity.

The judgment also found that DPP Chauke’s decision to withdraw the murder, kidnapping and related charges against Mdluli and to refer the matter to an inquest to be irrational and therefore unlawful. Pointing out that any decision to discontinue a prosecution will need to be properly informed by relevant considerations if it is to be upheld as rational, the judgment found that Chauke failed to consult the affected parties – including those affected by the crime. As a consequence of this failure vital relevant information about the case was ignored and the decision was thus coloured by irrationality.

Moreover, it appears that Chauke had ignored the Policy Directives of the NPA, which obliged him to seek the advice of the Acting NDPP before withdrawing the murder and related charges. The court found that the decision by Chauke to withdraw the murder, kidnapping and related charges against Mdluli was taken without the legal and rational prerequisites to the exercise of the power being met.

In terms of the Prosecution Policy Directives, Chauke may only withdraw charges in the face of such formidable evidence if there are compelling reasons to do so. Yet, he has advanced none. Instead, he has stated puzzlingly that he is disinclined to prosecute because there is no direct evidence linking Mdluli to the murder of Ramogibe. He has offered no evaluation of the cogency of the circumstantial evidence against Mdluli.

The judgment questions Chauke’s motive for referring the matter to an inquest at all, calling them “dubious”. It found that Chauke’s statement that in the light of the inquest finding “it would be presumptuous and foolhardy” to prosecute is “accordingly wrong in law and symptomatic of the irrationality of his decision, evincing as it does a lack of rational connection between the purpose of his decision, the various empowering provisions, the evidence before him and the reasons he gave for his action.”

If one accepts the findings of the court, the inescapable conclusion is that Chauke acted to protect Mdluli for reasons that cannot be explained. The allegations of political interference in the Mdluli matter from the highest level might cast light on the motives of Chauke in protecting Mdluli, but the judgment does not speculate about this.

On the version of the facts accepted by the court, the then acting NDPP also displayed a troubling lack of professionalism and did not act without fear, favour or prejudice. The court pointed out that she had failed to mention to relevant representations to the court made to her by Glynnis Breytenbach. Neither did she tell the court that Mdluli’s representation to have the charges dropped was addressed to her and not actually to Mrwebi.

The judgment further points out that all the facts suggest that for reasons unknown the NDPP was not at all eager to review the decisions of her underlings regarding the dropping of charges against Mdluli:

It is reasonable to infer from the Acting NDPP’s supine attitude that any referral to her would be a foregone conclusion and the remedy accordingly of little practical value or consequence in this case. Her stance evinces an attitude of approval of the decisions.

The NDPP is authorised by the Constitution to intervene in the prosecution process and to review the prosecutorial decisions. Yet, the acting NDPP “remained supine and would have us accept that her stance was justified in terms of the Constitution”. Her conduct was therefore found to be inconsistent with the duty imposed on all public functionaries by section 195 of the Constitution to be responsive, accountable and transparent.

Once again, the judgment leaves one with the suspicion (not directly addressed by the court) that the NDPP acted not in accordance with her constitutional duties, but in accordance with the dictates of people who wanted to protect Mdluli for reasons that remains unexplained.

For the Minister of Police and the President, the most devastating aspect of the judgment might well be the finding that then Acting Police Commissioner, Nhlanhla Mkhwanazi did not drop disciplinary charges against Mdluli out of his own accord. As the official responsible for managing and controlling the SAPS, he had to exercise the discretion conferred on him himself, and could not abdicate his decision-making power to another, nor act on the instructions of a functionary not vested with those powers. As judge Murphy explained:

Yet he withdraw the disciplinary charges on instruction from authorities “beyond” him. Mkhwanazi must accordingly be taken to have admitted that he acted under dictation, without independence and inconsistently with his constitutional duties… The inescapable finding is that the decisions of the Acting Commissioner to withdraw the disciplinary charges and to re-instate Mdluli as head of Crime Intelligence were taken in an attitude of subservience pursuant to an unlawful dictation from a person unknown, who was “beyond” the Acting Commissioner. They were therefore unlawful and invalid. ….

Because Mkhwanazi buckled under political pressure and unlawfully took instructions (once again from a person or persons unidentified) to drop disciplinary charges against Mdluli, his “conduct could only serve 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.”

Once again, the question that remains unanswered is which politician or politicians interfered illegally in the Mdluli matter and why they did so. Could it have been to protect President Jacob Zuma? This question must be posed to the Minister of Police and to the Presidency – but don’t expect any answers from them. If they really interfered to protect somebody charged with murder, kidnapping and fraud, serious questions must be asked about their fitness to hold public office.

The distrust of the court in the integrity and the independence of all concerned is reflected in the fact that the NPA and the police respectively were ordered to reinstate forthwith the criminal and disciplinary charges against Mdluli. The judge did not mince his words about why the NPA could not be trusted to deal with the matter.

The NDPP and the DPPs have not demonstrated exemplary devotion to the independence of their offices, or the expected capacity to pursue this matter without fear or favour. Remittal back to the NDPP, I expect, on the basis of what has gone before, will be a foregone conclusion, and further delay will cause unjustifiable prejudice to the complainants and will not be 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 judgment also has implications for President Jacob Zuma. Zuma, who has spent millions of rands in public funds to avoid having his day in court to clear his name and dispel perceptions that he was corrupted by Schabir Shaik, will have to take note of the findings that the court can review an NPA decision to withdraw charges against an accused both on the grounds of legality and in terms of the Promotion of Administrative Justice Act (PAJA).

This means such a decision can be set aside not only if it was found not to be rational, but also if it is found that it was not reasonable. If these findings are confirmed on appeal, the review of the dropping of charges against Zuma himself will have a far greater chance of success (once the stalling by the President to avoid the review from ever happening comes to an end).

The judge had harsh words for the NPA lawyers who argued that the decision of the NPA to drop charges against a criminal suspect was not reviewable at all.

It is inconceivable in our constitutional order that the NPA would be immune from judicial supervision to the extent that it may act illegally and irrationally without complainants having access to the courts. Considering the implications, one can only marvel at the fact that senior lawyers are prepared to make such a submission.

It pointed out that while a decision to institute charges should not be reviewable under PAJA as any wrong decision in this regard can be aired during trail, the situation is different when charges are withdrawn. In such a case illegal or irrational decision by the NPA or one made in bad faith or even unreasonably (because PAJA applies) would go undetected unless the courts had the power to review that decision.

I could not help thinking of the dropping of charges against President Jacob Zuma when I read this part of the judgment. I am sure President Zuma’s lawyers would have had the same thought, knowing that if this judgment stands, the chances of Zuma one day finally having his day in court “to clear his name” draws ever closer.

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