As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The North Gauteng High Court yesterday for the umpteenth time came to the rescue of our democracy (although Ngoako Ramathlodi, who used to be on the fringes of the ANC when its important leaders still had some moral authority, might not agree), granting an urgent interdict prohibiting the apartheid cop, General Richard Mdluli, from fulfilling any functions in the South African Police Service (SAPS) and preventing the Police Commissioner and the Minister of Safety and Security from assigning any functions or duties to Mdluli.
The interdict was granted pending a substantive review by the court of various decisions previously taken by the National Prosecuting Authority (NPA) and the SAPS, decisions apparently taken in an unseemly politically-motivated attempt to protect Mdluli from criminal prosecution and to secure his continued services as the Head of the Police Crime Intelligence Unit of the SAPS. It is the same Crime Intelligence Unit which was recently given the sole power to authorise the interception of phone calls as well as the authority over the VIP protection service, something that gives its head access to information about the whereabouts and actions of all cabinet Ministers and other powerful actors entitled to VIP protection.
Any number of these Ministers (and other political role players whose phones might be bugged) might oppose the election of President Jacob Zuma to a second term as leader of the ANC. The perception has therefore arisen that the fight around Mdluli has everything to do with a fight over control of the intelligence community with an eye to the ANC elective conference in December.
Freedom Under Law (FUL) and the Social Justice Coalition (SJC) will now have the opportunity to present its arguments to the court in its substantive application to have several suspicious decisions aimed at protecting Mdluli reviewed and set aside. The decision yesterday was merely to prevent Mdluli from sabotaging the criminal cases against him and from abusing his power while serving in the SAPS until such time as the main application in the case is considered. A perusal of the decisions being challenged leaves one with the strong impression that the mess can be squarely blamed on political interference in decisions taken by the SAPS high command and by NPA leaders.
In the judgment handed down yesterday, Makgoba J emphasised that Mdluli was facing very serious allegations and that the public interest required this matter to be dealt with as speedily as possible. This was because the continued public controversy created by the alleged protection of Mdluli is affecting the integrity of the Police and its ability to fulfil its constitutional mandate. Makgoba J also concluded that there was a good chance that the applicants in this case would be successful in its main application and that they had made out a prima facie case to have the various decisions reviewed and set aside.
But what are these decisions they want to have set aside?
The first decision the applicants want to have set aside is the one made on 6 December 2011 by the Advocate Lawrence Mrwebi who is the head of the Specialised Commercial Crime Unit within the NPA when he decided to withdraw charges of fraud and corruption against Mdluli. The relevant prosecutors (one who has since also been suspended after insisting on continuing with the prosecution) had advised Mrwebi that there was no basis to withdraw the charges, as there was strong evidence to support them. Instead of accepting that advice, he persisted in his instruction that the charges against General Mduli be withdrawn.
The review of this decision is based, first, on the fact that the person empowered to review a decision to prosecute or not to prosecute is Advocate Nomgcobo Jiba, the acting National Director of Public Prosecutions and not Mrwebi. This is clear from section 179(5)(d) of the Constitution which does not empower Mrwebi to review a decision to prosecute anyone. It is alleged that Mrwebi unlawfully purported to exercise the power, which power he did not have, acting inconsistently with the Constitution, and in violation of the principle of legality and the rule of law.
Second, in the alternative it is based on the fact that the decision was taken in the face of overwhelming evidence against General Mdluli, and against the strong recommendation of the prosecutors. It is therefore alleged that the decision was arbitrary, irrational and taken for no proper purpose. A decision in terms of section 179(5)(d) must be taken after consulting the relevant Director of Public Prosecutions, and taking representations from relevant parties. But it is alleged that the decision taken by Mrwebi appears to be based solely on representations made by General Mdluli and the input of the prosecutors were not sought or considered.
The second decision the applicants want to have reviewed was made on 29 February 2012 by the acting Commissioner of the SAPS (or other members of the SAPS, acting on his authority) to withdraw disciplinary charges against General Mdluli. The basis for this review is, first, that the acting Police Commissioner has publicly stated that he was instructed by authorities “beyond” him to withdraw disciplinary charges against, and reinstate, General Mdluli. By acting on the instructions of authorities “beyond” him, the Police Commissioner failed to act independently, without fear, favour or prejudice, and himself to discharge the function which vests in his own office. It is thus alleged that he acted inconsistently with the provisions of section 207(1) of the Constitution which impose the constitutional obligation on him to exercise control over and manage SAPS (control which cannot be ceded to the Minister of Police by taking direct instructions from the Minister on how to deal with individual matters within the SAPS).
Second, it is alleged that the Commissioner is always obliged, in terms of section 205(3) of the Constitution, to protect and promote the constitutional objects of SAPS, which include the obligation to uphold and enforce the law. The disciplinary charges against General Mdluli were instituted in accordance with the relevant provisions of the SAPS Act and the Regulations made in terms thereof. It is alleged that by withdrawing the disciplinary charges against General Mdluli, the Commissioner failed to uphold and enforce the SAPS Act and the Regulations, and therefore acted in breach of the rule of law and the principle of legality.
The third decision to be reviewed is the decision by the Acting Head of the Prosecuting Authority (or persons under her authority) on 2 February 2012, to withdraw the murder charges against General Mdluli, and instead to refer the matter to a formal inquest. It is alleged that the third decision to withdraw the murder charges against Mdluli is open to review because in terms of the relevant provisions of section 179(5)(d) of the Constitution, the NPA Head is entitled to withdraw a criminal charge or charges against an accused person, but only after following the requirements of section 179(5)(d)(i) to (iii) of the Constitution, which require her to make the decision after she had considered representations from the accused person, the complainant, and any other relevant third party.
In this case, the decision to drop murder charges was taken after only representations made by or on behalf of General Mdluli had been considered. Representations from complainants and other victims of the crimes in which General Mdluli was allegedly involved were neither called for nor considered. By not asking for or considering representations for other affected parties (including the family of the deceased, it is alleged that the acting NPA Head acted inconsistently with the provisions of the Constitution and also the rule of law and the principle of legality.
In any case, it is alleged the decision to drop charges was taken despite compelling evidence against Mdluli. In these circumstances, so it is argued, the decision was arbitrary, irrational and taken for no proper purpose authorised by law. FUL also alleges that the NPA Head had requested and obtained a legal opinion from Senior Counsel which advised that the charges of murder and related offences should be persisted with, and not withdrawn, yet nevertheless withdrew the charges, thus acting arbitrarily and irrationally, and in a manner inconsistent with the provisions of section 179(2), which requires her to institute and prosecute criminal proceedings on behalf of the State.
The fourth and last decision the applicants want to have reviewed is the decision made on 31 March 2012 by the acting head of the SAPS to reinstate General Mdluli as the National Divisional Commissioner: Crime Intelligence of SAPS. As the SAPS is also required to be “impartial, accountable, transparent and efficient”, in terms of section 218(1) of the Interim Constitution and as part of that responsibility is to ensure that the SAPS does not tolerate, and deals effectively with, allegations of corruption and other unlawful behaviour by individuals within its ranks, the decision is alleged to be open to review on the ground that it is inconsistent with section 205(2) of the Constitution, in breach of the rule of law and violates the principle of legality.
Reading through Mamphela Ramphele’s founding affidavit in this case, it is very difficult not to conclude that there was an orchestrated, politically-motivated, unlawful and unconstitutional attempt made to protect an old apartheid cop implicated in murder and fraud. Neither the Minister of Police – implicated in corruption associated with a slush fund which was under Mdluli’s control and in the alleged cover up to protect Mdluli – nor our President – who is a close confident of the Minister of Police and to whom a letter from Mdluli was addressed pledging support for Zuma’s re-election as ANC President – has provided any explanation for this disturbing series of events. Neither have they given an indication that they appreciate the seriousness of the matter nor that they are acting decisively to protect the Republic and its Police Service.
The absence of any plausible explanations from the two gentlemen who are politically responsible for the SAPS, can either mean that the Minister and the President were themselves instrumental (either through their direct actions or the actions of intermediaries) in effecting the attempted cover up, or that they were not in control of the government and not on top of their jobs.
It might be that the two politicians had absolutely nothing to do with the orchestrated series of events which led to the taking of the four decisions that are being challenged and that somebody else (maybe somebody who is part of a third force or is a member of the intelligence service?) with immense influence over the relevant state institutions actually orchestrated this series of events aimed at protecting Mdluli. However, in the absence of any plausible alternative explanation, the perception would grow ever stronger that the Minister of Police and the President have been involved in a monumental unconstitutional and unlawful cover up and that this cover up is directly related to the upcoming ANC leadership elections.
One does not be unnecessarily alarmist, but this is a very serious matter. What is required from the President is answers. And fast. If President Zuma continues to argue that he knows nothing about the Mdluli scandal, that it is an internal SAPS matter or that others are dealing with the scandal, or if he fails to provide firm evidence of the identities of those other plotters responsible for this cover up, South Africans may begin to ask whether the time has come for the National Assembly to consider the possible impeachment of our President in terms of section 89(1) of our Constitution. This section states that the National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office on the grounds of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office.
That there was an orchestrated attempt to protect Mdluli is hardly in dispute. What we need answers about is who have been behind these attempst to protect him.BACK TO TOP