ANALYSIS: Mdluli's conviction brings closure in the case that ripped apart the NPA

2019-07-31 11:00
Richard Mdluli. (File: Bongiwe Gumede, Netwerk24)

Richard Mdluli. (File: Bongiwe Gumede, Netwerk24)

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For over a decade, an old murder docket lay forgotten in a safe in an East Rand police station. Someone had neglected to clean it out. The docket gathered dust, as a family hoped and waited for justice.

Then one day in 2009, as the top management of the police service was waging a calculated and destructive internal battle, the docket was rediscovered, dusted off, leaked to the media, revived and taken to court.

On Tuesday this week, former head of crime intelligence Richard Mdluli was convicted in the Gauteng High Court in Johannesburg on the basis of that 1999 murder docket, 20 years after it was first opened.

Judge Ratha Mokgoatlheng found Mdluli and his co-accused, Mthembeni Mthunzi, guilty on charges relating to the kidnapping and assault of Oupa Ramogibe. Crucially, they were not on trial for murder.

Many in the criminal justice sector have reacted with amazement to the court's decision to convict Mdluli. At a time, it was unfathomable that the man who apparently wielded such power and influence over the police's Crime Intelligence (CI) unit and the National Prosecuting Authority (NPA) could be held to account. It was believed that he controlled the system and manipulated it for his own protection.

Cast your mind back to 2011 when the state capture project was gathering momentum and the destruction of the SAPS and NPA was revving into full throttle. Mdluli had been at the helm of CI for two years. Menzi Simelane was being fired as national director of public prosecutions (NDPP) and Nomgcobo Jiba was in control as an acting successor.

It was a time when Mdluli was enormously powerful – when state agencies were abused for political and personal agendas and law enforcement officials were too busy spying on one another and pillaging state coffers to focus their resources on criminals. It was a time when journalists and politicians tongue-in-cheek greeted Mdluli each time they took a phone call, so certain were we that his operatives were listening to our conversations. Every clandestine encounter with a source required removing our sim cards from our phones and elaborate evasion efforts, so terrified were we of who was watching. There were two distinct factions within the SAPS, mirroring the two camps within the ANC at the time.

Between 2010 and 2011 the allegations against Mdluli piled up. These ranged from nepotism to fraud to attempted murder. He was accused of hiring and paying family members as intelligence sources. He was accused of looting CI's slush fund and abusing covert offices and safe houses. There were allegations about fraudulent vehicles. There were also overseas trips for top brass and their family members, ostensibly paid for out of the slush fund used for secret operations.

Top police management began to appoint investigators to look into these allegations against Mdluli. Then deputy national commissioner (and current Hawks head) General Godfrey Lebeya authorised an official probe and then Gauteng Hawks head Shadrack Sibiya was tasked with overseeing this.

While the allegations of corruption and fraud began to solidify, a far more serious charge against Mdluli lurked in the shadows. This time there was quite literally a skeleton involved. The old case docket that was shelved was dusted off and reopened. It was a murder file. Mdluli was accused of being behind the death of Ramogibe, his ex-girlfriend's husband, who had been killed in 1999. At the time of the murder, Mdluli was the station commander at Vosloorus.

Although Mdluli was long suspected of interfering in the case and sabotaging the investigation, nothing was done until he rose to the powerful position of CI commander and someone went looking for that file.

Before he even became head of CI, when the rumours that the Ramogibe docket was being unearthed again first reached his ears, Mdluli took pre-emptive measures. He tasked a little-known deputy commissioner in Limpopo with investigating who was behind a plot to prevent him from becoming CI head. That deputy commissioner was Mthandazo "Berning" Ntlemeza, who subsequently became head of the Hawks and a close ally of Mdluli.

Ntlemeza produced a report that exonerated Mdluli of any wrongdoing in Ramogibe's death and found that the allegations were part of a smear campaign to prevent Mdluli's appointment.

Mdluli has always maintained that there is a political conspiracy against him. He even has a name for it – Ulibambe lingashoni, which loosely translated means, "Don't let the sun set."

In November 2010, Mdluli sent a secret letter to President Jacob Zuma claiming "victimisation and abuse of state resources". He was convinced that senior figures in CI had been trying to frame him for the murder of Ramogibe since 2007 and he was worried that the Hawks were taking up the investigation. He appealed to Zuma to intervene, claiming that the spies behind this campaign were aligned to former president Thabo Mbeki. He compiled a dossier in which he pledged his loyalty to the president and provided a so-called intelligence report that implicated Zuma's alleged political enemies.

The case that ripped the NPA apart

During all this, Mdluli was charged with murder and placed on suspension during which he continued to draw a salary. An inquest into the murder was held and in 2012, Director of Public Prosecutions in Johannesburg Andrew Chauke took a decision to provisionally withdraw the murder charge.

However, civil organisation Freedom Under Law took the matter to court. The Supreme Court of Appeal (SCA) ultimately overturned a decision by the High Court that the murder charges should be reinstated against Mdluli. The SCA essentially gave Chauke two months to decide which charges to reinstate. He reached the conclusion that Mdluli would face kidnapping, intimidation and assault charges instead of murder. The fact that a murder charge was not pursued infuriated those who had initially investigated and prosecuted the case as they were adamant that Mdluli had a case to answer on murder. But Chauke has defended his position, most recently during his interview for the NDPP position.

Mdluli was also charged with fraud and corruption for looting the CI secret fund but those charges were later controversially withdrawn. This case would have massive implications. It was because of this docket that prosecutor Glynnis Breytenbach was suspended and in turn it ripped apart the NPA, causing deep rifts between those in favour of Mdluli and those against him. It is because of this case that the NPA was cracked down the middle, with senior members either in the camp that bent over backwards to protect him, or that which believed he should face the full might of the law.

Many would argue that it was also because of Mdluli that for a long time, the police's CI unit was essentially defunct and incapacitated, doing very little intelligence work on organised crime and instead focusing on personal vendettas and political agendas.

For nearly seven years Mdluli was on fully paid leave and earned over R12m in combined salary and payouts, including a performance bonus. He was finally fired in January last year.

For the past four years, Mdluli has been on trial in the High Court where evidence has been led and witnesses have been testifying about the Ramogibe murder. This culminated in the decision to convict him, although he is likely to appeal.

The significance of this conviction is immense as it marks the end of an era of capture and destruction. It is a signal that a man who was seen as all powerful, who knew where all the bodies were buried and who was privy to high-level intel, is in fact not above the law. It shows that the justice system has worked and has held him to account.

As NDPP Shamila Batohi attempts to rebuild the credibility of the NPA and Peter Jacobs works to rehabilitate Crime Intelligence, they will view this conviction as an affirmation that the Mdluli chapter is now closed. Although the legacy of it will remain for years to come.

A number of those police officers and prosecutors who worked on this case responded by WhatsApp yesterday that this conviction is "justice". But only to a degree. They still believe Mdluli should have been charged with murder and should still face the law on charges of corruption and fraud. "It's better than nothing," said one.

Some justice it would seem, is better than none at all.

Read more on:    saps  |  npa  |  richard mdluli  |  police
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