Mdluli court challenge leaves nothing to chance

2012-05-16 10:16

Rights organisation Freedom Under Law is taking no chances in its court challenge of decisions taken to withdraw criminal and disciplinary charges against Lieutenant General Richard Mdluli.

Freedom Under Law (FUL), headed by retired Constitutional Court judge Johann Kriegler, is challenging almost all of the decisions related to Mdluli on multiple legal grounds.

In an affidavit filed in the North Gauteng High Court on behalf of FUL, Dr Mamphele Ramphele said the way Mdluli had been dealt with “reflects an extraordinary degree of lack of accountability and a breach of the culture of justification under the Constitution which our courts have sought to impress on those who exercise public power”.

The rights organisation, in filed court papers, is asking for a review of the following decisions:

» The NPA’s decision to drop corruption, fraud and money laundering charges against Mdluli relating to alleged abuses of the police’s crime intelligence slush fund. The charges were dropped on the instruction of Lawrence Mrwebi, head of the Specialised Commercial Crime Unit.

» The decision to withdraw disciplinary charges against Mdluli, taken by acting police commissioner Nhlanhla Mkhwanazi, was on the instruction of authorities “beyond him”. This was admitted by Mkhwanazi at a press conference.

» The NPA’s decision to withdraw murder, kidnapping and assault charges related to the 1999 murder of Oupa Ramokgibe.

» The decision taken by police to re-instate Mdluli as head of crime intelligence on March 31 2012.

In relation to all but one of these decisions, FUL is arguing a court can review them based on both their legality, non-compliance with the Constitution and the law, as well as irrationality.

The exception is the decision to withdraw disciplinary charges against Mdluli, which is only challenged on the basis of legality.

A decision by a public authority is considered irrational by the courts when they can find no connection between the decision and its purpose.

In terms of legality, for example, FUL argues that the Constitution only gives the power to the National Director of Public Prosecutions to withdraw or review a decision to prosecute.

It therefore argues that the NPA’s decision to withdraw fraud and corruption charges against him, on Mrwebi’s instruction, was not consistent with the Constitution.

FUL also argues that this decision was irrational because it was contrary to the 200-page memorandum submitted by suspended advocate Glynnis Breytenbach urging the NPA to continue the prosecution, similar advice from senior counsel and the “weight of evidence gathered by investigators”.

The organisation has gone even further when it comes to the decision to drop criminal charges against Mdluli.

Mdluli Timeline

In both those cases it is arguing that there is an extra ground of review – on the basis of the Promotion of Administrative Justice Act (PAJA).

However, a recent, preliminary decision of the Supreme Court of Appeal – in the DA’s court challenge of the dropping of corruption charges against President Jacob Zuma – did not make any finding on whether such a decision was subject to review under the PAJA.

While FUL’s review application, the second part of its case, will only be heard by the court much later, it has also asked the court for urgent, interim relief.

This is in the form of an interdict preventing Mdluli from working as a police officer.

For the interdict to be granted FUL has to prove, among others, that there is a clear right which faces irreparable harm and that there is no other option but to go to court.

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