Mdluli judge has ‘big problem’ and ‘big issue’

2013-09-13 08:46

The judge who is hearing Freedom Under Law’s court bid to reinstate criminal charges against suspended crime intelligence head Richard Mdluli has a “big problem” with an argument that he can’t intervene in the matter.

Yesterday was the final day of argument in rights organisation Freedom Under Law’s court bid to overturn the decision to drop corruption and disciplinary charges against suspended crime intelligence head Richard Mdluli.

Advocate Lawrence Hodes SC, who is representing the NPA, yesterday had an uphill battle when he had to face down a barrage of questions from Judge John Murphy about an argument that a court could not review the decision of a senior prosecutions head.

Hodes said Murphy could not grant an order to reinstitute criminal charges against Mdluli because such a response would be “entering the exclusive terrain of the director of public prosecutions”.

But Hodes was cut short by Murphy who said there was an “extremely worrying aspect to a submission that a decision of an important constitutional functionary should be free of review”.

Hodes has typified the respective decisions of Andrew Chauke, the Johannesburg director of public prosecutions, and Advocate Lawrence Mrwebi, the head of the NPA’s specialised commercial crimes unit, to drop murder, assault, kidnapping intimidation, corruption and fraud charges as temporary withdrawals of the prosecution, rather than final decisions not to prosecute.

Hodes has argued that these decisions remain outside the ambit of a court to arbitrate on because the national director has not yet made a final decision on them.

But Murphy responded to this by asking “So you can temporarily withdraw a matter for 25 years and nobody can challenge it?”

Murphy likened it to a case where a prosecutor could be bribed to temporarily withdraw charges indefinitely.

“So a corrupt prosecutor gets away with it and there’s nothing you can do about it?” he asked.

Hodes responded that a complainant would be entitled to review such a decision and that Freedom Under Law was not the complainant here.

Murphy appeared unconvinced, saying this would “leave the public interest in the hands of a complainant”.

Freedom Under Law yesterday handed up a draft order at the close of proceedings which, if granted, would see all criminal charges against Mdluli reinstated and would also compel the police to proceed with Mdluli’s disciplinary hearing.

Vincent Maleka SC, who appeared for Freedom Under Law, has argued the decisions taken by Chauke and Mrwebi were decisions which purported to review previous decisions to institute a prosecution against Mdluli.

He has argued the Constitution only permits the national director of public prosecutions to review such decisions and both Chauke and Mrwebi’s decisions were therefore unlawful.

Maleka has conceded this power to review a prosecution could be delegated, but has argued the evidence shows that neither Mrwebi nor Chauke claimed to be acting in terms of a delegated power.

William Mokhari, who appeared for the police, has argued this matter is one which FUL “is trying to cloak a cat with a sheep skin and say it’s a sheep”.

Mokhari argued Mdluli’s suspension and disciplinary were matters of labour law, and not Constitutional law as it has been “cloaked” by FUL.

Murphy, however, responded by saying Maleka would argue that “Freedom Under Law is saying that you’ve taken a constitutional sheep and turned it into a labour cow.”

Murphy also gave Mokhari a tough time over an assurance National Police Commissioner Riah Phiyega made under oath, with which she has failed to comply.

Murphy said it was a “big issue” that Phiyega has not obtained a confirmatory affidavit from acting former police commissioner Nhlanhla Mkhwanazi about a statement he made in Parliament that the order to drop charges against Mdluli came from “beyond” him.

In her affidavit Phiyega said Mkhwanazi told her he was misquoted and this was actually a reference to the NPA. She also undertook to file a transcript of the parliamentary proceedings and a confirmatory affidavit.

Mokhari has described Phiyega’s failure to file these documents as an “oversight”, but Murphy said FUL had filed the affidavit putting Phiyega to the test three months ago without response from the police.

“I’m obliged to make a finding that (Mkhwanazi) was acting under dictation or not acting under dictation,” said Murphy.

He said he was obliged by a rule of South African case law, generally referred to as the Plascon-Evans rule, to prefer the applicant’s version where a denial was bare, untenable or uncredible.

Judgment has been reserved.

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