Freedom under Law v National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Murphy J
• Judgment Date: 23 September 2013
• Citation: 2014 (1) SA 254 (GNP)
• Docket Number: 26912/12
• Counsel: V Maleka SC (with S Yacoob and I Goodman) for the applicant. L Hodes SC (with N Manaka and E Fasser) for the first and third respondents. WR Mokhari SC (with M Zulu and DM Matlou) for the second and sixth respondents.
• Court: North Gauteng High Court, Pretoria

Murphy J: C

[1] This application is a matter of public interest and national importance on account of it raising significant issues of propriety, accountability and justifiable conduct in the governance of the Republic. The main issue is whether certain decisions made by the various respondents to D withdraw criminal and disciplinary charges against the fifth respondent, Lieutenant-General Richard Mdluli (Mdluli), the Head of Crime Intelligence within the South African Police Service (SAPS), were unlawful.

[2] The applicant, Freedom Under Law (FUL), a public interest organisation, seeks an order directing the National Prosecuting Authority (the NPA) to reinstate several withdrawn criminal charges — including murder, E attempted murder, kidnapping, assault, fraud and corruption — against Mdluli. It also seeks orders directing the National Commissioner of SAPS (the Commissioner) to reinstate withdrawn disciplinary charges against Mdluli arising from the same alleged misconduct.

[3] FUL is a non-profit company as contemplated in s 10 of the Companies Act. F [1] It was established in 2008 and has offices in South Africa and Switzerland. It is actively involved, inter alia, in the promotion of democracy, the advancement of and respect for the rule of law and the principle of legality as the foundation for constitutional democracy in Southern Africa. Its board of directors and international advisory board are made up of respected lawyers, judges and role players in civil society G in various parts of the world.

[4] Dr Mamphela Ramphele, the deponent to the founding and supplementary affidavits, is a member of the international advisory board of FUL and was previously vice-president of the World Bank in Washington, and vice-chancellor of the University of Cape Town. She was a universally H recognised leader of the black consciousness movement in the struggle against apartheid and is currently president of Agang, a new political formation in South Africa. The deponent to the replying affidavit is the chairperson of the board of FUL, Justice Johann Kriegler, a retired judge of the Constitutional Court, who in 1994 served as Chairperson of the I Independent Electoral Commission overseeing the first democratic election in South Africa.

[5] Both the Constitutional Court (the CC) and the Supreme Court of Appeal (the SCA) have in the past recognised the right of FUL to act in the

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public interest in terms of s 38 of the Constitution in relation to A infringements of the Bill of Rights. [2] FUL has, on occasion, also been admitted by the courts as amicus curiae in important cases involving constitutional matters.

[6] These review proceedings, brought in terms of part B of the notice of B motion, challenge the decisions of the first, second and third respondents to withdraw the criminal and disciplinary charges that were pending against Mdluli who, though currently interdicted by this court from performing his duties, remains the Head of Crime Intelligence within SAPS; and, as stated, are aimed at reinstating the criminal and disciplinary C charges forthwith. The present proceedings were preceded by an urgent application, in terms of part A of the notice of motion, for an interim order interdicting Mdluli from carrying out his functions and the Commissioner from assigning any tasks to him, pending the finalisation of the review proceedings. The interim order was granted by Makgoba J on 6 June 2012. D

[7] The first respondent is the National Director of Public Prosecutions (the NDPP), the Head of the NPA. The NDPP is appointed by the President of the Republic and invested by s 179(2) of the Constitution and ch 4 of the National Prosecuting Authority Act [3] (the NPA Act) with the powers, E functions and duties to institute criminal proceedings on behalf of the state and to carry out any necessary function and duty which is incidental thereto. At the time these proceedings were launched, the office of the NDPP was vacant as a consequence of the decisions of the SCA and the CC finding the appointment of the previous incumbent, Advocate Simelane, to be unconstitutional. During the period relevant to these proceedings, F the position was occupied by Advocate Nomgcobo Jiba, who served as the Acting NDPP until the recent appointment of Mr Nxasana as NDPP by President Zuma.

[8] The second respondent is the Commissioner, who in terms of the G relevant legislation is the head of SAPS. The Commissioner withdrew the disciplinary charges against Mdluli and reinstated him as Head of Crime Intelligence in SAPS. Section 207(2) of the Constitution, read with the relevant provisions of ch 5 of the South African Police Services Act [4] (the SAPS Act) and the regulations made in terms thereof, oblige the Commissioner to ensure that members of SAPS diligently fulfil their duties to H prevent, combat and investigate crime, maintain public order, protect and secure the inhabitants of the Republic, and uphold and enforce the law of the land. The Commissioner and his or her provincial or divisional subordinates have the duty to institute and prosecute disciplinary action against any member of SAPS who is accused of and charged with I

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A misconduct, and to suspend from office such a member, pending the outcome of disciplinary proceedings. [5]

[9] When these proceedings commenced, the Office of the Commissioner was occupied by Lieutenant-General Nhlanhla Mkhwanazi (the B Acting Commissioner), who was serving in an acting capacity following the suspension of the former Commissioner General Bheki Cele on grounds of alleged impropriety. Subsequent to the commencement of these proceedings and the ultimate dismissal of General Cele, President Zuma appointed General Mangwashi Phiyega as Commissioner. The impugned decisions of the Commissioner, withdrawing disciplinary C charges and reinstating Mdluli in his position, were taken by Lieutenant-General Mkhwanazi.

[10] The third respondent is Advocate Lawrence Mrwebi (Mrwebi), a Special Director of Public Prosecutions and the Head of the Specialised Commercial Crimes Unit (SCCU) within the NPA. It was he who took the D decision and gave instructions to withdraw charges of fraud and corruption against Mdluli. Other charges of murder, attempted murder, kidnapping, intimidation and assault were withdrawn by Advocate Chauke (Chauke), Director of Public Prosecutions (DPP) for South Gauteng, who has not been cited as a party, it having been deemed sufficient to cite the NDPP as titular head of the NPA, to whom Chauke is E accountable.

[11] The fourth respondent is Ambassador Faith Radebe, the Inspector-General of Intelligence (the IGI), appointed in terms of s 7 of the Intelligence Services Oversight Act. [6] She is the only respondent not to F oppose the application and has filed a notice to abide.

[12] The fifth respondent, Mdluli, did not actively oppose the relief sought in part B of the notice of motion. He filed an answering affidavit opposing the relief sought in part A of the notice of motion. He however did not file further opposing papers and was not represented at the G hearing before me.

[13] The sixth respondent, the Minister of Safety and Security, was joined in the proceedings to give effect to the interim order interdicting the assignment of tasks to Mdluli pending the finalisation of the review. H He has joined the Commissioner in opposing the application.

[14] In sum, FUL seeks to review and set aside four decisions in relation to Mdluli: the decision taken by Mrwebi on 5 December 2011 to withdraw the corruption and related charges; the decision taken by Chauke on 1 February 2012 to withdraw the murder and related charges; the decision taken by the Acting Commissioner on 29 February 2012 to withdraw the disciplinary proceedings; and the decision of 27 or I 28 March 2012 to reinstate Mdluli as the Head of Crime Intelligence

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within SAPS. It also seeks an order directing that the criminal and A disciplinary charges be immediately reinstated and prosecuted to finalisation without delay.

Preliminary evidentiary and procedural issues

[15] The background facts giving rise to the review are for the most part B common cause. However, in its founding affidavit FUL conceded that it was compelled by force of circumstances, in bringing the application, to rely on hearsay statements reported in the media and elsewhere. It accordingly made a general application for any hearsay evidence to be admitted in the interests of justice in terms of s 3 of the Law of Evidence Amendment Act. [7] It based the application on five broad considerations: C the relevant source documents relating to the decisions were inaccessible as they were under the control of the respondents; some of the statements have been reported in the media and have not been repudiated by the respondents; the impugned decisions were taken without any public explanation, in violation of the constitutional obligation of D transparency, openness and accountability; the review deals with subject-matter of significant public interest; and the respondents would suffer no material prejudice by the admission of the hearsay, with any prejudice being outweighed by the public interest in proper justification of the decisions.

[16] In motivating the admission of the evidence, FUL did not identify the E specific statements upon which it hoped to rely. Nonetheless, it is evident that it had in mind a range of statements made in certain newspaper articles, as well as statements and reports made by members of SAPS and the NPA — in particular Colonel Kobus Roelofse and Colonel Peter Viljoen of the Directorate Priority Crime Investigations in Cape F Town (the Hawks), and Advocate Glynnis Breytenbach of the NPA — who investigated the allegations against Mdluli but were...