National Director of Public Prosecutions and Others v Freedom under Law

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Navsa JA, Brand JA, Ponnan JA and Maya JA
• Judgment Date: 14 April 2014
• Docket Number: 67/14 [2014] ZASCA 58
• Hearing Date: 01 April 2014
• Counsel: L Hodes SC (with N Manaka and E Fasser) for the first and second appellants. WR Mokhari SC (with M Zulu) for the third appellant. I Motloung for the fourth appellant. S Yacoob (with I Goodman and N van der Walt) for the respondent.
• Court: Supreme Court of Appeal

Brand JA (Mthiyane DP, Navsa JA, Ponnan JA and Maya JA concurring):

[1] This is an appeal against an order of the high court granted at the H behest of the respondent. In substance the order reviewed and set aside four decisions taken by or on behalf of the first three appellants in favour of the fourth appellant, and directed the first three respondents to reinstate criminal prosecutions and disciplinary proceedings against him. The appeal is with the leave of the court a quo. More precise details of the order appealed against will appear from the exposition of the I background that follows. I find it convenient to start that exposition by presentation of the parties.

The parties

[2] The first appellant is the National Director of Public Prosecutions (NDPP). Advocate Nomgcobo Jiba was appointed on 28 December 2011 J as the Acting NDPP by the President of the Republic after the

Brand JA (Mthiyane DP, Navsa JA, Ponnan JA and Maya JA concurring)

suspension from that office of the then incumbent, Mr Menzi Simelane, A in consequence of a judgment of this court. The second appellant is Advocate Lawrence Mrwebi (Mrwebi), who was appointed on 1 November 2011 as Special Director of Public Prosecutions and the Head of the Specialised Commercial Crimes Unit (SCCU) of the National Prosecuting Authority.

[3] The third appellant is the National Commissioner of the B South African Police Service (the Commissioner). During the time period relevant to these proceedings that position was occupied first by General Bheki Cele, thereafter by Lieutenant-General Nhlanhla Mkhwanazi, in an acting capacity, and finally by General Mangwashi Victoria Phiyega. The fourth appellant, who took centre stage in these proceedings, is C Lieutenant-General Richard Mdluli (Mdluli), who held the office of National Divisional Commissioner: Crime Intelligence in the South African Police Service (SAPS), a position also described as Head of Crime Intelligence, since 1 July 2009.

[4] The respondent, Freedom Under Law (FUL), is a public-interest D organisation, registered as a non-profit company with offices in South Africa and Switzerland. It is actively involved, inter alia, in the promotion of democracy and the advancement of respect for the rule of law in the southern African region. Both its board of directors and its advisory board are composed of respected lawyers, judges and other leading E figures in society at home and abroad.

Background

[5] It is common cause that on 31 March 2011 Mdluli was arrested and charged with 18 criminal charges, including murder, intimidation, kidnapping, assault with intent to do grievous bodily harm, and defeating F the ends of justice. The murder charge stemmed from the killing of Mr Tefo Ramogibe (the deceased) on 17 February 1999. From about 1996 until 1998 the deceased and Mdluli were both involved in a relationship with Ms Tshidi Buthelezi. The deceased and Buthelezi were secretly married during 1998. Mdluli was upset about this and addressed the issue on numerous occasions with Ms Buthelezi and the deceased, G and members of their respective families. At the time Mdluli held the rank of senior superintendent and the position of commander of the detective branch at the Vosloorus Police Station. Charges of attempted murder, intimidation, kidnapping, etc, rested on allegations by relatives and friends of the deceased and Ms Buthelezi, that Mdluli and others H associated with him — including policemen under his command — brought pressure to bear upon them through violence, assaults, threats, kidnappings and in one instance rape, with the view to compelling their cooperation in securing the termination of the relationship between the deceased and Ms Buthelezi. According to one of the complainants, who I is the mother of the deceased, Mdluli had on occasion taken her to the Vosloorus Police Station where she found the deceased injured and bleeding. In her presence Mdluli then warned the deceased to stay away from Ms Buthelezi. The deceased was killed a few days thereafter.

[6] On 23 December 1998 the deceased was the victim of an attempted murder. He reported the incident to the Vosloorus Police Station. On J

Brand JA (Mthiyane DP, Navsa JA, Ponnan JA and Maya JA concurring)

A 17 February 1999 the deceased and the investigating officer, Warrant Officer Dhlomo, drove to the scene in Mdluli's official vehicle for the stated purposes of the deceased participating in a prearranged pointing- out. According to Dhlomo they were attacked by two unknown assailants at the scene who shot at them and took away his firearm and the B vehicle in which they were travelling. He ran to a nearby tuck shop to summon the police. Upon his return he found that the deceased had been killed. At the time, the matter never proceeded to trial. Much of the original docket and certain exhibits have since been lost or have disappeared.

C [7] Information about the discontinued investigation resurfaced after Mdluli was appointed the Head of Crime Intelligence in 2009. Two senior officers of the Directorate of Priority Crime Investigation (the Hawks), Colonel Roelofse and Lieutenant-Colonel Viljoen, were appointed to assist in the renewed investigations, and Mdluli came to be arrested on these charges — to which I shall refer as the murder and D related charges — on 31 March 2011. In the light of the seriousness of these charges, the then Commissioner of Police, General Bheki Cele, suspended Mdluli from office on 8 May 2011 and instituted disciplinary proceedings against him.

[8] After Mdluli's arrest on the murder and related charges, some E members of Crime Intelligence came forward with information concerning alleged crimes committed by some of its members, including Mdluli. Lieutenant-Colonel Viljoen, who was involved in the investigation of the murder and related charges, was instructed to investigate these allegations in conjunction with Adv C Smith of the Specialised Commercial F Crime Unit (SCCU). Following upon these investigations, Smith successfully applied for a warrant for Mdluli's arrest on charges of fraud and corruption, which was executed on 20 September 2011.

[9] What emerges from the papers filed of record is that the charges of fraud and corruption originate from the alleged unlawful utilisation of G funds held in the Secret Service account — created in terms of the Secret Services Act 56 1978 — for the private benefit of Mdluli and his wife, Ms Theresa Lyons. Broadly stated it is alleged that one of Mdluli's subordinates, Colonel Barnard, purchased two motor vehicles ostensibly for use by the Secret Service, but structured the transaction in such a H manner that a discount of R90 000, that should have been credited to the Secret Service account, was utilised for Mdluli's personal benefit. The further allegation was that those two motor vehicles were then registered in the name of Mdluli's wife and appropriated and used by the two of them.

I [10] On 3 November 2011 Mdluli wrote a letter to President Zuma, the Minister of Safety and Security and the Commissioner, stating that the charges against him were the result of a conspiracy among senior police officers — including the then Commissioner, General Bheki Cele, and the head of the Hawks, General Anwar Dramat. The letter also stated, rather inappropriately, that, '(i)n the event that I come back to work, I will J assist the President to succeed next year', which was an obvious

Brand JA (Mthiyane DP, Navsa JA, Ponnan JA and Maya JA concurring)

reference to the forthcoming presidential elections of the ruling African A National Congress in Mangaung towards the end of 2012. The allegations of a conspiracy led to the appointment by the minister of a task team which later reported that there was no evidence of a conspiracy and that the police officers who had accused Mdluli of criminal conduct had acted in good faith.

[11] On 17 November 2011 Mdluli's legal representatives made representations B to Mrwebi in his capacity as Special DPP and Head of the SCCU, seeking the withdrawal of the fraud and corruption charges. These representations again contended that the charges against Mdluli resulted from a conspiracy against him involving the most senior members of the C South African Police Service. The representations also indicated that a similar approach had been made to Adv KMA Chauke, the DPP South Gauteng, for withdrawal of the murder and related charges. Mrwebi, in response to the representations made to him, requested a report from Smith and his immediate superior, Advocate Glynnis Breytenbach, who both responded with a motivation that the charges should not be D withdrawn. Despite this motivation, Mrwebi decided to withdraw these charges and notified Mdluli's representatives of his decision to do so on or about 5 December 2011. The circumstances under which Mrwebi's decision was arrived at is central to one of the disputes in this case. I shall revert to this in due course. E

[12] On 1 February 2012 Chauke decided to withdraw the murder and related charges as well. He explained that, after he received the representations by Mdluli's legal representatives, he realised that there was no direct evidence implicating Mdluli in the murder charge. He therefore decided that an inquest should be held before he proceeded with that F charge and that the murder charge should therefore be provisionally withdrawn, pending the outcome of the inquest. To prevent fragmented trials, so he said, he decided that the 17 charges related to the murder should also be provisionally withdrawn, pending finalisation of the inquest.

[13] I pause to record that at Chauke's request the inquest was held in G terms of the Inquests Act 58 of 1959 by the magistrate of Boksburg, who handed down his reasons and findings on 2 November 2012. His ultimate conclusions make somewhat...