NPA ‘abandoned’ legal opinion

2012-03-17 17:03

The National Prosecuting Authority (NPA) allegedly acted against the advice of a senior advocate when it withdrew murder charges against crime intelligence boss Richard Mdluli last month.

Three independent sources have told City Press that Advocate Modise Khoza advised the NPA not to drop charges against Mdluli and his three fellow accused for allegedly killing Vosloorus resident Oupa Ramogibe in 1999.

Mdluli and Ramogibe were allegedly dating the same woman when he was shot dead.

Last year the Hawks arrested Mdluli and three other police officials, including his close ally, Colonel Nkosana “Killer” Ximba, for intimidating, kidnapping, assaulting and murdering Ramogibe.

But in February Advocate Andrew Chauke, the director of public prosecutions in Johannesburg, withdrew charges against them and ordered a judicial inquest into Ramogibe’s death.

This he did after receiving representations from Mdluli’s lawyer, Ike Motloung.

City Press revealed last month that Motloung’s representations rested on two premises: that Mdluli was the victim of a grand conspiracy, driven by suspended police chief Bheki Cele and reservist Paul O’Sullivan, and that there was no evidence to link him to Ramogibe’s murder.

Faced with the representations, Chauke had to weigh it up against evidence gathered by a senior
Hawks team, led by Cape Town detective Piet Viljoen.

In a telephonic interview with City Press this week, Chauke first denied having asked for a legal opinion on the matter, but then admitted requesting funding from the NPA to ask Khoza’s opinion on whether he should consider dropping the charges.

After flip-flopping on his role in the saga, Chauke explained that he decided to ask for an inquest first and then decide whether to reinstate charges against Mdluli and his co-accused or not.

Asked why he would request a legal opinion on the matter and then not use it in deciding what to do, Chauke said he “abandoned” the opinion because “in the interim, after reconsidering, I decided to go with my decision. I will consider the opinion when I get it.”

Chauke said he wanted a senior counsel’s opinion because he was “going through a thought process, during which I decided to do an inquest . . . the issues I wanted him (Khoza) to help me with is the stratagem of the case.

“His opinion is still going to help me going forward, the inquest is ongoing, it is not final,” Chauke said.

But the version told by City Press’ sources differs substantially. They claim Khoza advised Chauke not to withdraw charges against Mdluli and his co-accused after examining the representations and the strength of the evidence.

NPA spokesperson Mthunzi Mhaga supported Chauke’s version that he would only use Khoza’s opinion after the inquest had been completed.

“We confirm that Advocate Chauke sought an opinion from Advocate Modise Khoza as a thought process which will inform the final decision whether to proceed with the case against General Richard Mdluli and his co-accused.

“His (Chauke’s) prima facie view was that all the issues raised by General Mdluli’s legal representative, which were mainly on evidential aspects of the case, can be properly ventilated through a judicial inquest.

The findings of that judicial inquest would then be considered along with the legal opinion from counsel and a decision whether to proceed with the prosecution or not would then be taken,” Mhaga said.

He said Chauke’s decision to order an inquest was made before Khoza’s opinion was received “but that does not mean the opinion will not be considered”.

Mhaga emphasised that the opinion of a senior counsel assists as a “guiding tool”, but the prosecutors are not bound by it.

“However, with regard to this matter, it will be considered when the final decision is made after the judicial inquest.”

Mhaga defended Chauke’s use of the word “abandoned”, saying the context in which he used the word “was to explain that it was kept in abeyance, pending the findings of the inquest”.

Khoza said attorney-client privilege prevented him from discussing the matter.

Although the NPA and Chauke were attempting to portray his decision to withdraw charges as a temporary measure, Hawks spokesperson McIntosh Polela confirmed that all investigations into Mdluli, including the murder case, had been “suspended”.

City Press understands Viljoen and his colleagues were ordered by Hawks boss Anwa Dramat to “close their files and go back to Cape Town (where they are based)”.

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