Judge: Inquest found Mdluli involvement in murder 'consistent with facts'

2013-09-11 20:32

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The finding of an inquest into the 14-year old murder mystery surrounding the death of Vosloorus resident Oupa Ramokgibe has not cleared suspended crime intelligence head Richard Mdluli of charges of murder, attempted murder, assault, kidnapping and intimidation.

The North Gauteng High Court today heard the first day of argument in rights organisation Freedom Under Law’s (FUL) bid to overturn the decision by the National Prosecuting Authority not to prosecute suspended crime intelligence head Richard Mdluli.

They are also asking the court to review the police’s decision to withdraw internal disciplinary charges and Mdluli’s associated suspension on May 8 2011.

One of the decisions Freedom Under Law is attacking is one taken by Johannesburg Prosecutions boss Andrew Chauke, who said he had withdrawn Mdluli’s prosecution because an inquest into his death was being held.

The inquest finding by Magistrate Jurg Viviers last November found that nobody could be held responsible for Ramokgibe’s murder, a finding which the NPA has relied upon to substantiate the dropping of charges against Mdluli.

But Vincent Maleka SC, who is arguing for FUL, today said the finding presented “highly relevant and serious challenges for Mr Mdluli”.

This interpretation appeared favourable to Judge John Murphy, the presiding officer, who said: “If I read the magistrate’s finding correctly and (the respondents) will challenge me here ... the finding was to the effect that the inference that  Mdluli was implicated in murder was indeed consistent with the facts”.

“There was a prima facie case”.

Murphy said Viviers had only found that Mdluli was not responsible because Mdluli’s involvement was not the only reasonable inference to be drawn from the facts.

Murphy went on to say that Viviers had expressly stated that he had no jurisdiction over further charges of assault with intent to do grievous bodily harm, attempted murder, assault, kidnapping and intimidation in relation to the case.

The court also heard that national police commissioner Riah Phiyega has apparently failed to win the support of her predecessor on allegations of political manipulation in the case of Mdluli.

Last year, Nhlanhla Mkhwanazi, then acting police commissioner, told Parliament that he had been instructed by “powers beyond us” to release certain case dockets to the inspector-general of intelligence.

The statement appeared to have been a thinly veiled reference to Mdluli.

Phiyega, in her replying affidavit to the matter that was heard today, said that Mkhwanazi was “quoted out of context.”

“As I understand it, and this is what he later clarified to me, was that his response was in relation to the issue of the withdrawal of charges which falls within the domain of the NPA.”

Phiyega states that she would obtain a confirmatory affidavit from Mkhwanazi, but Maleka today told the court “there is no confirmatory affidavit of Mr Mkhwanazi”.

“We don’t know why there is no confirmatory affidavit,” said Maleka.

Maleka has argued that both the decision to review fraud and corruption charges and the decision to review the charges related to the Ramokgibe matter stand to be set aside because they were taken by directors of public prosecution who were not authorised to make them.

Maleka argued that it was only the national director of public prosecutions who had this power and that neither Chauke nor Lawrence Mrwebi, who dropped the corruption charges, had purported to make a decision empowered by acting national director of public prosecutions Nomgcobo Jiba.

Jiba has consistently maintained that she did not deal with the Mdluli matter.

Advocate Lawrence Hodes SC yesterday also began arguing the case for the NPA.

Hodes said that, at best, Freedom Under Law could refer the decision back to the national director of public prosecutions for a decision and only after she had issued a nolle prosequi certificate would the matter be open for review or for a private prosecution.

A certificate of nolle prosequi is a document which officially says that the NPA will no longer be pursuing a criminal prosecution and paves the way for a private prosecution by parties who have a substantial interest in the matter.

Hodes said that FUL was not such a party and that it was attempting to “subvert the system and short circuit the whole process (of prosecution as contained in the constitution).”

Argument in the matter will continue tomorrow.

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