7/31/2019 FUL v NDPP (Gen Mdluli) - Founding Affidavit (Dr Ramphele)
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IN THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE NO.
In the matter between:
Freedom Under Law Applicant
and
The National Director of Public Prosecutions First Respondent
The National Commissioner: South African
Police Service Second Respondent
The Head: Specialised Commercial Crime Unit Third Respondent
The Inspector-General of Intelligence Fourth Respondent
Richard Naggie Mdluli Fifth Respondent
Minister of Safety and Security Sixth Respondent
Founding Affidavit
I, the undersigned,
Dr Mamphela Aletta Ramphele
do hereby make oath and state the following:
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A. Introduction
1.
1.1. I am a member of the International Advisory Board of Trustees
of Freedom Under Law (“FUL”). I am a chairman and director of
companies, previously a Vice-President of the World Bank in
Washington and Vice-Chancellor of the University of Cape Town.
I qualified and worked as a medical practitioner in community
health. As a Black Consciousness leader I was detained,
subjected to banning orders and banished to a remote area of
the then Transvaal.
1.2. Throughout my life I have been committed to the advancement
of democracy and social justice (inter alia I co-authored the
Second Carnegie Report on Poverty in South Africa), and more
latterly to constitutionalism and the rule of law. I am a member
of the International Advisory Board of the applicant. I have been
authorised by the Board of Trustees of FUL to bring this
application on behalf of FUL and to make this affidavit on its
behalf.
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1.3. The facts I describe herein fall within my personal knowledge,
unless I state otherwise or the context of what I say makes it
clear that they do not. I confirm that those facts are, to the best
of my knowledge and belief, true and correct.
1.4. Where relevant and necessary, I shall make legal submissions,
based on the legal advice I have received from FUL’s legal
representatives in the course of the preparation of this affidavit.
I verily believe that the legal advice concerned is correct and
rely on it in support of this application.
2. I make this affidavit on the strength of information gathered by and on
behalf of the applicant relating to the decisions that are sought to be
reviewed, and a report as well as affidavits made by members of the
investigating team, Colonel Kobus Demeyer Roelofse and Lieutenant-
Colonel Peter Janse Viljoen, who investigated criminal charges against
General Mdluli. I shall also refer (in the urgent circumstances in which
this application is brought, more fully described below) to media reports
on the decisions to withdraw criminal and disciplinary charges against
General Mdluli and thereafter to reinstate him as the head of crime
intelligence of SAPS. Where relevant, I refer to these source materials in
support of my averments. Where I refer to certain public statements or
media reports, I do so on the basis of my understanding that none of
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these have been repudiated by any of the respondents. I accordingly
believe them to be true.
3. I have been advised that some of the evidence to which I refer is, by its
nature, hearsay. I have approached individuals who have personal
knowledge of the facts to confirm hearsay statements to which I refer.
These persons include Advocate Breytenbach's attorney, Mr Gerhard
Wagenaar, Colonel Roelofse. I was informed by Mr Wagenaar that
Advocate Breytenbach is unable to depose to a confirmatory affidavit
because she has been advised by him that she is bound by a
confidentiality agreement. I was informed by Colonel Roelofse that he is
unable to depose to a confirmatory affidavit because he has been
advised that it constitutes a conflict of interest in respect of his employer.
4. I have been advised that not only is the material on which I rely
admissible in the circumstances of an urgent application, for reasons
which I understand are further a matter for legal argument, but that in
any event it would be in the interests of justice for the hearsay
statements I make to be admitted, despite their hearsay character,
because:
4.1. First, in review proceedings such as the present, relevant
evidence and source documents relating to the decisions to be
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reviewed is in the hands of the respondents or persons under
their control. The applicant has not yet obtained access to
documents which form part of the review record.
4.2. Second, the hearsay statements relate to matters which have
been reported widely in the media and none of the respondents
have repudiated those statements or provided a version
contrary to those statements.
4.3. Third, the respondents have made the impugned decisions
without any public explanation of those decisions, despite their
far-reaching implications of those. As I indicate below, the
respondents’ lack of explanation for their decisions violate their
fundamental constitutional obligation of transparency,
openness and accountability, set out in section 1(d) of the
Constitution.
4.4. Fourth, the review both deals with subject matter of significant
public interest, and is itself in the public interest. The evidence,
primarily having been gleaned from the media, is in the public
domain, and is under the control of the respondents. No
member of the public would be able to bring an application to
court based on matters of public importance reported in the
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media, unchallenged as to veracity by the respondents to date,
without reliance on such material.
4.5. Fifth, there is no material prejudice which the respondents
would suffer, if the hearsay statements are admitted. Any
prejudice that may be suffered is slight weighed against the
public interest arising from the need to justify the constitutional
legality, validity and rationality of the impugned decisions.
4.6. Sixth, the present application includes the relief sought in Part A
of the notice of motion on an urgent basis, and there is a
compelling need for this honourable Court to adjudicate that
relief as soon as possible.
5. The applicant furthermore will in due course also seek leave to expedite
the hearing of the final relief sought in Part B of the notice of motion.
The grounds on which the applicant seeks the necessary leave are the
following:
5.1. The way in which General Mdluli has been dealt with by the
respondents reflects an extraordinary degree of lack of
accountability and a breach of the culture of justification under
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the Constitution which our courts have sought to impress on
those who exercise public power.
5.2. The reinstatement of General Mdluli into office, without
prosecution of criminal and disciplinary charges against him,
has caused serious controversy, material lack of trust within and
outside the ranks of SAPS, as well instability in SAPS, more
particularly at its leadership level. After his reinstatement,
General Mduli has made public statements which have added to
the mistrust and instability. For instance, he claims that certain
senior members of SAPS, including the Provincial Commissioner
of Police in Gauteng, General Mzwandile Petrus, and the head of
the Hawks, General Anwa Dramat, are part of a conspiracy to
remove him from SAPS.
5.3. Although the claim of conspiracy has been denied by senior
members of SAPS who are accused of conspiracy, particularly
General Petrus, the claim itself has generated further mistrust
and instability in the SAPS, to such a degree that the sixth
respondent has himself had to intervene, by making an
unexpected announcement in Parliament on Thursday, 10 May
2012.
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5.4. In his public announcement, the sixth respondent has described
the accusations at the senior level of SAPS as unfortunate, and
serious enough to warrant investigation by a task team he has
established for the purpose. He also indicated that pending the
conclusion of the task team’s mandate, General Mdluli will be
‘redeployed’ from his current position, with immediate effect, to
another post, not yet determined, but which would be identified
by the second respondent. A copy of the sixth respondent’s
statement is annexed hereto and marked “FA 1.1”.
5.5. The ‘redeployment ’ of General Mdluli, as announced by the sixth
respondent in these vague terms, patently does not resolve the
problem caused by his reinstatement, and his far-reaching
claims of conspiracy. By his conduct, the sixth respondent
accepted that there was a need to act, but has not initiated
suspension proceedings, or any other measure which would
remove General Mdluli from active daily service in SAPS as a
high-ranking officer. He remains vested with the authority of his
rank, and he remains on active service, able to exercise the
powers vested in a police lieutenant-general under the Police
Act and related legislation.
5.6. I am aware that (apart from the nearly 600 more junior officers
of SAPS currently suspended pending determination of serious
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allegations of criminality related to them) there is a striking
recent instance where a senior member of SAPS was ultimately
suspended by the President, pending the outcome of a inquiry
into allegations of improper behaviour made against him. I refer
in this regard to the suspension of the Commissioner himself,
General Bheki Cele. A similar suspension applied to his
predecessor, General Jackie Selebi. As far as I am aware no
reason has been given why a similar course was not followed in
the present case.
5.7. The claim of conspiracy made by General Mdluli is itself
sufficient cause to suspend him from office, pending the
investigation of that claim. The decision to redeploy General
Mdluli shows that his treatment is partial and selective. In the
light of the criminal and disciplinary charges which had been
instituted against General Mdluli but were withdrawn, the
decision to not to suspend him is arbitrary and irrational.
6. In the light of the above considerations, this application is brought in
two parts:
6.1. In Part A the applicant seeks urgent interim relief whose
purpose is ensure that General Mdluli does not perform any
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official functions and duties either as head of Crime Intelligence
in SAPS or in connection with or arising from the redeployment
foreshadowed by the sixth respondent in annexure “FA1.1”
hereto. The grounds on which the urgent interim relief is sought
are set out in section D of this affidavit.
6.2. In Part B of the notice of motion the applicant seeks the review
and setting aside of the decisions set out in section E of this
affidavit. The grounds on which these decisions are sought to be
reviewed are described in both sections C and H of this affidavit.
7. In addition to the above relief the applicant seeks the mandatory orders
described in the notice of motion. The purpose of these orders is to
remedy all the unlawful and unconstitutional decisions and conduct of
the respondents, arising from the impugned decisions. Once granted, the
mandatory orders will ensure that the respondents properly fulfill their
functions and duties in a manner that is consistent with the Constitution,
and gives effect to the rule of law and principle of legality. In section I of
this affidavit I deal with the basis on which the applicant pursues the
mandatory orders.
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B. The parties
8. The applicant is Freedom Under Law, a non-profit company
incorporated and registered in the Republic of South Africa (“the
Republic”) in accordance with the then provisions of section 21 of the
Companies Act, 61 of 1973, now section 10 of the Companies Act, 71 of
2008, as amended.
9. The applicant was established in January 2009 and has offices of record
in the Republic and in Switzerland. Its registered offices in the Republic
are at PWC, 19 Oewer Park, Rokewood Avenue, Stellenbosch.
10. The first respondent is Advocate Nomgcobo Jiba, the acting National
Director of Public Prosecutions, who was appointed as such by the
President of the Republic, on 28 December 2011, after the suspension
from office of the incumbent, Mr Menzi Simelane, as a result of the
judgment of the Supreme Court of Appeal in Democratic Alliance v The
President of the RSA & others 2012 (1) SA 417 (SCA), delivered on 1
December 2011.
11. The address for service of the first respondent within the area of
jurisdiction of this court is care of the State Attorney, SALU Building, 316
Andries Street (corner Andries and Schoeman Streets), Pretoria.
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12. By virtue of the provisions of section 179(2) of the Constitution, as well
as Chapter 4 of the National Prosecuting Authority Act, 32 of 1998, as
amended (“the NPA Act”), the first respondent has the powers, functions
and duties to institute criminal proceedings on behalf of the State, and to
carry out any necessary function and duty which is incidental thereto.
13. The first respondent is joined in these proceedings by virtue of the fact
that she, or employees of the National Prosecuting Authority purporting
to act on her behalf, or on the authority of her office, took a decision to
withdraw criminal proceedings against General Mdluli. As I shall
indicate more fully below, the decision to withdraw those criminal
proceedings is unconstitutional, unlawful and invalid and should be
reviewed, on the grounds more fully set out herein.
14. The second respondent is Lieutenant-General Nhlanhla Mkhwanazi, the
acting National Commissioner of South African Police Service. He was
appointed as such by the President of the Republic, when General Bheki
Cele was suspended from office as the National Commissioner on or
about 24 October 2011.
15. The address for service of the second respondent within the area of
jurisdiction of this court is also that of the State Attorney, Pretoria.
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16. By virtue of the provisions of section 207(2) of the Constitution of the
Republic of South Africa, 1996 (“the Constitution”), read with
section 205(3) thereof, as well as the relevant provisions of Chapter 5 of
the South African Police Service Act, 68 of 1995, as amended (“the SAPS
Act”), and the Regulations made in terms thereof, the second respondent
is the head of the South African National Police Service (“SAPS”) and is
required, amongst other things, to:
16.1. ensure that he and other members of SAPS diligently fulfil their
constitutional and statutory functions and duties to prevent,
combat and investigate crimes, maintain public order, protect
and secure the inhabitants of the Republic, and uphold and
enforce the law of the land;
16.2. institute disciplinary action and prosecute disciplinary
proceedings against any member of SAPS who is accused of and
charged with misconduct, and to suspend from office, with or
without payment of employment benefits, such a member,
pending the outcome of disciplinary proceedings.
17. The second respondent is joined in these proceedings by virtue of the
fact that on 27 March 2012, he and/or other members of SAPS acting
under his control or direction, took a decision to terminate disciplinary
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proceedings which had been instituted against General Mdluli and to
withdraw charges of misconduct that had been brought against General
Mdluli, and thereafter to immediately reinstate him in office as the
National Divisional Commissioner for Crime Intelligence within SAPS.
18. As I shall show more fully below, the decision to terminate disciplinary
proceedings, and to withdraw charges of misconduct, against General
Mdluli, and also to reinstate him as the National Divisional
Commissioner for Crime Intelligence is unconstitutional, unlawful and
invalid, and is subject to review on the grounds more fully set out below.
19. The second respondent is also joined herein by virtue of the fact that the
urgent interim relief sought in the notice of motion affects him. Should
that relief be granted he will be required to give effect to it.
20. The third respondent is Advocate Lawrence Mrwebi who is the head of
the Specialised Commercial Crime Unit within the National Prosecuting
Authority, appointed as such on 25 November 2011.
21. The address of service of the third respondent within the area of
jurisdiction of this court is also that of the State Attorney, Pretoria.
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22. The third respondent is joined in these proceedings by virtue of the fact
that he has been reported in the media, and has not denied the media
reports, as having taken the decision to withdraw charges of murder and
related offences against General Mdluli, and as having instructed the
members of the National Prosecuting Authority in charge of the
prosecution of General Mdluli to withdraw those charges.
23. For the reasons I shall advance below, the decision made by or
attributed to the third respondent is unconstitutional, unlawful and
invalid and is liable to be reviewed and set aside by this court.
24. The fourth respondent is Advocate Faith Radebe, the Inspector General
of Intelligence, appointed in terms of section 7 of the Intelligence
Services Oversight Act, 40 of 1994, on 7 April 2010.
25. The address for service of the fourth respondent within the area of
jurisdiction of this court is also that of the State Attorney, Pretoria.
26. The fourth respondent is joined in these proceedings by virtue of the fact
that she investigated circumstances relating to the purported
withdrawal of criminal charges against General Mdluli, issued a report
and recommended that the criminal charges against General Mdluli
should be reinstated and that he should be prosecuted forthwith.
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27. The fourth respondent is joined in these proceedings by virtue of any
interest she may have. No order is sought against her, unless she
opposes the relief sought herein, in which event, an order as to costs will
be sought against her.
28. The fifth respondent is Lieutenant-General Richard Naggie Mdluli, the
National Divisional Commissioner: Crime Intelligence in the South
African Police Service, appointed as such on 1 July 2009. His place of
residence within the area of jurisdiction of this court known to the
applicant is 24 Kudu Street, Dawn Park, Boksburg, Gauteng Province.
29. General Mdluli has been the subject of a number of allegations and
investigations as detailed in this affidavit. He was suspended, pending a
disciplinary process, on 8 May 2011 and his suspension was lifted on
27 March 2012, when he was immediately reinstated in his employment
as the head of Crime Intelligence in SAPS.
30. In addition, General Mdluli was the subject of criminal charges as
detailed later in this affidavit, including charges of fraud and murder.
The fraud charges were withdrawn on 14 December 2011, while it was
announced on 2 February 2012 that the murder charges would be
withdrawn on 10 April 2012.
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31. The compliance with law of the lifting of General Mdluli’s suspension, of
the withdrawal of both criminal and disciplinary charges against him,
and of his reinstatement as the head of Crime Intelligence in SAPS is the
subject of this application.
32. General Mdluli is cited for his interest in the matter. In the event that he
opposes the relief sought herein, an order as to costs will be sought
against him.
33. The sixth respondent is the Minister of Safety and Security, the member
of Cabinet responsible for SAPS. He is joined in these proceedings by
virtue of the fact that the urgent interim relief sought in the notice of
motion affects him, and he will be required to give effect to it, in the
event it is granted.
34. In respect of the relief sought in Part B of the notice of motion no order
is sought against the sixth respondent, unless he opposes that relief, in
which event a costs order will be sought against him.
35. The address for service of the sixth respondent within the area of
jurisdiction of this court is also that of the State Attorney, Pretoria.
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C. Decisions sought to be reviewed
36. There are four decisions sought to be reviewed in these proceedings. I
describe those decisions in this section of the affidavit.
37. The first is the decision made on 6 December 2011 by the third
respondent in terms whereof the charges brought against of, inter alia,
fraud and corruption, were withdrawn. I shall refer to that decision as
“the first impugned decision”.
38. Immediately after he made the first impugned decision the third
respondent instructed the Public Prosecutor responsible for the
prosecution of the fraud and corruption charges, Advocate C Smith, and
Advocate Smith’s superior, Advocate Glynnis Breytenbach, to withdraw
the charges.
39. The latter had advised the third respondent that there was no basis to
withdraw the charges, as there was strong evidence to support them.
Instead of accepting that advice, the third respondent persisted in his
instruction that the charges against General Mduli be withdrawn.
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40. General Mdluli had already been informed of the third respondent’s
decision, prior to Advocates Smith and Breytenbach having being
informed. This is apparent from a report dated 2 March 2012 prepared
by Colonel Roelofse and addressed to the Commander of the Anti-
Corruption Task Team, annexure “FA1” to this affidavit.
41. The report suggests at paragraph 61 that the third respondent took the
view that only the fourth respondent could investigate the matter, and
that the evidence in the matter was irrelevant to his decision.
42. In consequence the charges were formally withdrawn in the Specialized
Commercial Crimes Court in Pretoria on 14 December 2011.
43. In summary, the first impugned decision is open to review on the
following grounds:
43.1. The person empowered to review a decision to prosecute or not
to prosecute is the first respondent, in terms of section
179(5)(d) of the Constitution.
43.2. The third respondent unlawfully purported to exercise the
power, which power he did not have, acting inconsistently with
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the Constitution, and in violation of the principle of legality and
the rule of law.
43.3. Even if the third respondent were clothed with the power to
review the decision to prosecute General Mdluli, the decision
was taken in the face of overwhelming evidence against General
Mdluli, and against the strong recommendation of Advocate
Breytenbach. It was, in the circumstances, arbitrary, irrational
and taken for no proper purpose.
43.4. A decision in terms of section 179(5)(d) must be taken after
consulting the relevant Director of Public Prosecutions, and
taking representations from relevant parties. The decision taken
by the third respondent appears to be based solely on
representations made by General Mdluli to the third respondent.
The views of the relevant prosecutors were ignored. The
decision is thus inconsistent with the requirements of section
179(5)(d).
43.5. By taking the decision that General Mdluli would not be
prosecuted, in the face of overwhelming evidence, and in
contradiction of the advice of Advocate Breytenbach, the third
respondent also acted irrationally, arbitrarily, for no proper
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purpose and in conflict with section 179(2) of the Constitution
read with section 179(4) and section 1(c) thereof.
43.6. Finally, if the decision was indeed taken on the basis that the
evidence was irrelevant and that only the fourth respondent had
jurisdiction to investigate the matter, the decision was based on
an error of law.
44. The second decision sought to be reviewed was made on 29 February
2012 by the second respondent or other members of SAPS, acting on his
authority, in terms whereof the disciplinary charges he had instituted
against General Mdluli were withdrawn and disciplinary proceedings
initiated to investigate and determine those charges were terminated. I
shall refer to this decision as the “the second impugned decision”.
45. In summary, the second impugned decision is open to review on the
following grounds:
45.1. The second respondent has publicly stated that he was
instructed by authorities “beyond” him to withdraw disciplinary
charges against, and reinstate, General Mdluli.
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45.2. By acting on the instructions of authorities “beyond” him, the
second respondent failed to act independently, without fear,
favour or prejudice, and himself to discharge the function which
vests in his own office. He therefore acted inconsistently with
the provisions of section 207(1) of the Constitution which
impose the constitutional obligation on him to exercise control
over and manage SAPS. He accordingly made the second
impugned decision also in violation of the rule of law and the
principle of legality.
45.3. Additionally, the second respondent is always obliged, in terms
of section 205(3) of the Constitution to protect and promote the
constitutional objects of SAPS, which include the obligation to
uphold and enforce the law.
45.4. The disciplinary charges against General Mdluli were instituted
in accordance with the relevant provisions of the SAPS Act and
the Regulations made in terms thereof.
45.5. By withdrawing the disciplinary charges against General Mdluli,
the second respondent failed to uphold and enforce the SAPS
Act and the Regulations, and therefore acted in breach of the
rule of law and the principle of legality.
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45.6. Finally, the second respondent is responsible for maintaining an
impartial, accountable, transparent and efficient police service,
in terms of section 11 of the SAPS Act read with section 218(1)
of the Constitution of the Republic of South Africa, Act 200 of
1998 (“the Interim Constitution”).
45.7. The withdrawal of the charges against General Mdluli in the
context outlined in this affidavit is patently inimical to an
impartial, accountable, transparent and efficient police service.
Not only do the offences in which General Mdluli is implicated
adversely affect these factors, but where a senior officer in SAPS
is not investigated and disciplined there is no incentive for other
members of the Service to behave in a manner which is
impartial, accountable, transparent or efficient.
45.8. The failure to investigate these charges is therefore a dereliction
of the second respondent’s constitutional and legislative duties.
46. The third impugned decision is the decision by the first respondent, or
persons under her authority, on 2 February 2012, to withdraw the
murder charges against General Mdluli, and instead to refer the matter
to a formal inquest.
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47. In summary, the third impugned decision is open to review on the
following grounds:
47.1. In terms of the relevant provisions of section 179(5)(d) of the
Constitution, the first respondent may decide whether to
withdraw a criminal charge or charges against an accused
person.
47.2. In making such a decision, she is required to act in accordance
with the express provisions of section 179(5)(d)(i) to (iii) of the
Constitution, which require her to make the decision after she
had considered representations from the accused person, the
complainant, and any other relevant third party.
47.3. In this case, the third impugned decision was taken after only
representations made by or on behalf of General Mdluli had
been considered. Representations from complainants and other
victims of the criminal charges brought against General Mdluli
were neither called for nor considered.
47.4. There is a constitutional obligation upon the first respondent to
call for and consider representations from these categories of
affected persons, before she may lawfully make the decision to
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withdraw charges against General Mdluli. She therefore acted
inconsistently with the provisions of section 179(5)(d)(ii) and
(iii) of the Constitution, and also the rule of law and the
principle of legality.
47.5. The third impugned decision was taken despite compelling
evidence to prosecute the criminal charges against General
Mdluli, of which the first respondent ought to have been aware.
The decision in the circumstances was arbitrary, irrational and
taken for no proper purpose authorised by law.
47.6. I believe that the first respondent, or an official under her
authority, also requested and obtained a legal opinion from
Senior Counsel which advised that the charges of murder and
related offences should be persisted with, and not withdrawn.
47.7. She therefore acted arbitrarily and irrationally, and in a manner
inconsistent with the provisions of section 179(2), which
requires her to institute and prosecute criminal proceedings on
behalf of the State. By failing to comply with that constitutional
obligation, the first respondent also acted in a manner
inconsistent with the rule of law, and the principle of legality.
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48. The fourth decision sought to be reviewed is the decision made on
31 March 2012 by the second respondent or members of SAPS, acting on
his authority, in terms whereof General Mdluli was reinstated in office as
the National Divisional Commissioner: Crime Intelligence of SAPS. I shall
refer to this decision as “the fourth impugned decision”.
49. The fourth impugned decision is subject to review upon the same
grounds as the second impugned decision. It is also open to review on
the following additional grounds:
49.1. In terms of section 205(2) of the Constitution, SAPS is required
to discharge its constitutional and statutory responsibilities
effectively. It is therefore required, amongst others, to inspire
and engender public trust, faith and confidence in its ability to
fulfil its responsibilities effectively.
49.2. SAPS is also required to be “impartial, accountable, transparent
and efficient”, in terms of section 218(1) of the Interim
Constitution.
49.3. Part of that responsibility is to ensure that SAPS does not
tolerate, and deals effectively with, allegations of corruption and
other unlawful behaviour by individuals within its ranks. That
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responsibility is heightened, and becomes acute, where
allegations of corruption and other criminal conduct are levelled
against a senior member of SAPS who occupies an important
leadership role, such as General Mdluli.
49.4. Where, as here, General Mdluli is implicated in serious criminal
conduct, which includes violent crimes against persons, and
corruption involving state resources, it goes without saying that
the withdrawal of criminal and disciplinary charges against him,
and his reinstatement to a position of leadership in SAPS, will
not only weaken the faith and confidence which the public is
required to have in SAPS, but also destroys the trust which the
public reposes in it.
49.5. By way of example, I refer to the telling remarks made by the
Chairperson of the Portfolio Committee on Police, reported in
the Mail & Guardian article of 17 April 2012, a copy whereof is
annexed hereto and marked “FA2”, in which she expressed his
distrust as follows –
“[Chikunga] earlier referred to controversial cases involving
senior police members, including that of recently reinstated
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crime intelligence head Richard Mdluli, as well as suspended
KwaZulu-Natal Hawks boss Major General Johan Booysen.
‘The head of crime intelligence -- our hope in fighting
crime in this country -- is alleged [to be involved in]
serious misconduct ... What is the feeling ... when the
most senior people in [the police] are suspected of
being involved in criminal conduct such as this?
"What is this supposed to mean? Who is sitting in
front of this portfolio committee? Who must we trust?
Who are you? Can you define yourself to this portfolio
committee so that we know?" Chikunga asked.
She said some of the serious allegations levelled against
some senior members of the police service "manifest a
flagrant violation of the moral integrity expected of police
members or conduct unbecoming that of a police member".
…
Chikunga noted that many of the facts coming to light in
cases against senior members were being exposed by the
media.
‘I’m worried about what this means about the
senior managers in this department, who are not
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able on their own to pick up these matters and
correct them,’ she said.
Chikunga called on Mkhwanazi to provide clarity on the
cases she had highlighted.
‘The head of the Hawks in KZN is … suspected of
being involved in serious misconduct.
‘And for … God’s sake, this is the head of the Hawks,
a specialised unit we’re talking about. Not just any
SAPS member, [but] the head of the Hawks, our
hope… in the fight against organised crime.’
She then said: ‘W ho is sitting in front of us here? Who must
we trust? Who must we not trust?’”
50. I therefore submit that the fourth impugned decision is also open to
review on the ground that it is inconsistent with section 205(2) of the
Constitution, in breach of the rule of law and violates the principle of
legality.
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51. In section H of this affidavit I describe, in detail, the grounds on which
the impugned decisions are open to review, both in terms of the
Constitution and the relevant provisions of the Promotion of
Administrative Justice Act, 3 of 2000, as amended (“PAJA”).
52. I conclude this part of the affidavit by pointing out that there has been
widespread media speculation and public concern about the lack of
reasons and justification by the first to third respondents, concerning
the making of the impugned decisions. None of these respondents has
publicly sought to explain the reasons for and justification of the
impugned decisions. Their silence manifests a failure to act in
accordance with the fundamental values of openness, transparency and
accountability. This, on its own, also renders the conduct of the
respondents unconstitutional, as it violates section 1(d) of the
Constitution.
D. Urgent interim relief
53. In annexure “FA1.1” the sixth respondent made it clear that General
Mdluli will remain in office as a member of SAPS and will fulfil functions
and duties arising from a post which will assigned to him as a result of
his redeployment. That office is yet to be identified by the second
respondent.
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54. On the sixth respondent’s approach, General Mdluli will remain in office
and perform functions and duties as SAPS member notwithstanding not
only the serious allegations against him, but also despite the fact that a
task team has been established to investigate the claims of conspiracy
which he has now made about his colleagues.
55. I submit that it is intolerable that General Mdluli should remain in office
in the face of serious allegations of criminal conduct against him, and
when he himself has alleged a conspiracy by ranking officers in SAPS. I
say so for the following reasons:
55.1. The primary constitutional and statutory function and duty of
General Mdluli is to combat criminal conduct, and ensure that
crimes are investigated prosecuted by the NPA.
55.2. The allegations against General Mdluli affect the very
foundation of his constitutional functions and duties. He is now
the subject of the very conduct he is required to combat and
ensure that it is investigated and prosecuted.
55.3. For as long as he remains in office the public will lose trust, faith
and confidence in him specifically as a member of SAPS, and
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generally in SAPS as an organisation to which he belongs. I refer
in this regard to annexure “FA2” hereto.
55.4. Secondly, SAPS must always act, and do so decisively, against
any member who becomes the subject of serious allegations of
criminality of the kind levelled against General Mdluli. Decisive
action in this case required that General Mdluli should not
remain in office, until those allegations are determined in
appropriate forums.
55.5. For as long as General Mdluli remains in office the image of
SAPS as an institution which tolerates criminal conducts in its
ranks will continue. I emphasize that SAPS is dependant upon
the legitimacy of its image to combat crime and earn the respect
and support of the public, which it requires to fulfil that function.
55.6. Thirdly, the second and sixth respondents have not suggested
that SAPS will not be able to perform its constitutional and
statutory functions and duties effectively and efficiently should
General Mdluli not be required to fulfil any functions and duties
as a member of SAPS pending the finalisation of disciplinary and
criminal charges against him. The fact that the second and sixth
respondents took the decision to remove General Mdluli from
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office as head of Crime Intelligence in SAPS shows that there
would be no such prejudice in the event interim relief is granted.
55.7. Fourthly, the sixth respondent has now instituted a task team to
investigate allegations of conspiracy made by General Mdluli.
55.8. The allegation of conspiracy fundamentally affects the integrity
and stature of those accused of conspiracy. It implies abuse of
power on their part, at the highest leadership in SAPS. It also
suggests abuse of state resources to settle personal scores.
55.9. Should General Mdluli remain in office, pending the outcome of
the investigation, it is inevitable that General Mdluli will be
required to engage with persons he has accused of conspiracy:
he will be required to report to them, or they will be required to
report to him.
55.10. It is intolerable that SAPS officials he has accused of conspiracy
should be required to engage with General Mdluli whilst the
investigation into the claim of conspiracy is not completed. The
ability of SAPS senior members to make vital decisions relating
to their functions and duties will be compromised.
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55.11. From what I describe in sections E and H of this affidavit the
applicant has shown a prima facie right to the review and
setting aside of the impugned decisions.
55.12. The primary purpose of the present application is to vindicate
the rule of law, and enforce compliance with the Constitution.
The applicant seeks to achieve that purpose in circumstances
where a vitally important law enforcement institution is
affected and its ability to carry out its constitutional and
statutory functions and duties are at stake. It also seeks to do so
in circumstances where the obligation of SAPS to undertake and
prosecute disciplinary proceedings against its own member is at
necessary.
55.13. Should the interim relief not be granted, the applicant will suffer
irreparable harm, as its attempts to uphold the rule of law will
be compromised.
55.14. From what I have described in paragraphs 5, and 53 to 55, the
balance of convenience favours the grant of the interim relief.
55.15. The applicant has no other adequate remedy. By the time the
relief sought in Part B is heard and determined, the damage to
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the legitimacy and image of SAPS will have been done. This is a
case where there is a continuing adverse impact on an
important law enforcement institution, by reason of continuing
public controversy, because neither the second nor sixth
respondents are prepared to take an obvious and necessary step
against General Mdluli. By failing to act as they should, they have
moreover generated a justifiable public perception of bias
towards him.
56. The applicants have afforded any respondents who choose to oppose the
relief sought in Part A sufficient opportunity to file their opposing
affidavits and to present their case on the date described in the notice of
motion, for the hearing of Part A.
E. FUL’s legal standing
57. FUL brings this application acting in its own interest. It also makes the
application acting on behalf of persons who are unable to act in their
own names. These include complainants and victims in the criminal
charges of kidnapping, assault and intimidation, and family members of
the deceased person (Mr Tefo Abel Ramogibe) in the murder charge, all
of which were brought against General Mdluli. For reasons I shall shortly
describe, these persons are not able to act for themselves in challenging
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the decisions sought to be reviewed, which evidently adversely affect
them.
58. The applicant also brings the application acting in the interest of the
public. The circumstances in which the impugned decisions were taken,
the palpable violation of the Constitution, the rule of law and principle of
legality, the grave consequences arising from these violations, and the
understandable public outcry arising therefrom, manifestly justify the
applicant’s approach to this court, acting in the interest of the public in
order to vindicate compliance with the Constitution and upholding of
the rule of law. The manifest institutional failure on the part of the
respondents who took the impugned decisions, and their unexplained
silence and lack of justification for their conduct require the court to
remedy the improper exercise of public power immediately, and without
further delay.
59. I proceed to describe the facts and circumstances which justify the
applicant’s standing on each of the above three bases.
Acting in own interest
60. The applicant is actively involved in the promotion of democracy and
law, the advancement of and respect for the rule of law and the principle
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of legality as the foundation for constitutional democracy in the
Southern African region, more particularly in the Republic. Its board of
directors comprises respected lawyers from South Africa, Botswana,
Namibia and Zimbabwe, namely, retired Justice Johann Kriegler, Ms Elize
Angula, Adv George Bizos SC; Mr Ezra Davids, Ms Beatrice Mthetwa, Mr
Abdool Rahim Khan, Professor Hugh Corder, Advocate Jeremy Gauntlett
SC and Dr Frederick Mostert.
61. The applicant also enjoys the support of an international advisory board
whose members comprise the Right Honourable Lord Steyn, Professor
Shami Chakrabarti, Judge Nathaniel R Jones, Mr Vernon E Jordan, Jnr,
Professor Jeffrey Jowell QC, Sir Sidney Kentridge QC, the Honourable Soli
Sorabjee SC, Archbishop Emeritus Desmond Mpilo Tutu and me.
62. The applicant’s mission is to:
62.1. promote democracy under law and to advance the
understanding and respect of the rule of law and the principle of
legality;
62.2. secure and strengthen the independence of the judiciary, and to
that end, to promote selection, training and advancement of a
judiciary appropriate to the needs of constitutional democracy;
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62.3. advance the independence and skill of the legal profession in
serving the courts and to enhance communication and
understanding between the judiciary, the legal profession,
academic lawyers, the media and society at large. It also wishes
to promote legal education appropriate to the needs of
constitutional democracy and to protect, promote and advance
freedom of speech and freedom of the media in relation to the
administration of justice and in courts.
63. The applicant has been admitted as an amicus in the following cases:
63.1. Constitutional Court case CCT 53/09 of the Minister of Justice
and Constitutional Development v Nyathi (regarding the
unconstitutionality of the State Liability Act 20 of 1957);1 and
63.2. North Gauteng High Court case 8550/09 of Pikoli v The President
& Others (regarding the unconstitutionality of the dismissal of
the National Director of Public Prosecutions).2
64. The applicant has also instituted review proceedings, acting in its own
interest, on behalf of other persons who could not act in their own name,
1 Now reported – Minister for Justice and Constitutional Development v Nyathi and Others
2010 (4) SA 567 (CC).2 Now reported – Pikoli v President of the Republic of South Africa and Others 2010 (1) SA
400 (GNP).
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and also in the public interest, in terms of the relevant provisions of
sections 38(a), (b) and (c) of the Constitution. The legal standing of the
applicant to act in that capacity, in order to challenge decisions which
violated the rule of law and principle of legality has been acknowledged
and upheld by the Supreme Court of Appeal.3 The applicant’s standing in
the constitutional challenge to the purported executive extension of the
term of office of the previous chief justice was also ultimately conceded
by the President and Minister of Justice and accepted by the
Constitutional Court.
65. The applicant has also observed the case of Jestina Mukoko v Attorney
General in the Zimbabwe Supreme Court (regarding the barring of
prosecution by reason of egregious breaches by the state of the accused
person’s fundamental rights).
66. I have already indicated, in section C above, the extent to which the
impugned decisions are inconsistent with the Constitution and in
violation of the rule of law and the principle of legality. These violations
directly engage the mission of the applicant to promote democracy
under law, and to advance the understanding and respect of the rule of
law and the principle of legality.
3 Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others 2011
(3) SA 549 (SCA).
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67. The applicant has a direct interest in ensuring that the impugned
decisions are reviewed, and that the respondents who took those
decisions are directed to comply with the relevant provisions of the
Constitution, the rule of law and the principle of legality.
68. Thus far, no one has sought to initiate review or other legal proceedings
to enforce compliance with the Constitution or the rule of the law by the
respondents who took the impugned decisions in regard to those
decisions. This is despite the widespread public outcry and
condemnation of those decisions. By virtue of its primary mission, the
resources it has and its past experience in litigating and participating in
cases that involved the promotion and upholding of the rule of law, the
applicant is well-suited to bring the present review, acting in its own
interest and to approach this honourable Court for an appropriate
remedy.
Acting on behalf of others who cannot act for themselves
69. In respect of the criminal charges of kidnapping, assault and
intimidation, there are complainants, victims and family members of the
deceased who are known to the first to third respondents and whose
rights and interests were ignored by the respondents when they took
the impugned decisions.
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70. It is clear that the family members of the deceased have been drastically
affected by the murder of the deceased. They have a right to human
dignity which entitles them to expect that justice will not only be done
but will also be seen to be done in respect of the murder charges
brought against General Mdluli and his co-accused. The same
fundamental considerations apply in respect of the complainants and
victims in the criminal charges of kidnapping, assault and intimidation
brought against General Mdluli and his co-accused.
71. In this case the right to dignity of the complainants, victims and family
members, protected by of section 10 of the Constitution, and their right
to be heard, protected by section 33 of the Constitution, have been
effectively ignored by the respondents when they took the impugned
decisions. And yet, General Mdluli was heard and afforded an
opportunity to make representations.
72. Such unequal treatment of the affected persons violate the rights of the
complainants, victims and family members to equal protection and
benefit of the law, in a manner which is inconsistent with section 9(1) of
the Constitution.
73. The affected complainants, victims and family members are persons
from historically disadvantaged backgrounds. They do not have the
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knowledge, means and resources to assert their constitutional rights and
ventilate the breaches of the Constitution and the rule of law arising
from the decisions that are sought to be reviewed, as well as the conduct
of the respondents in taking those decisions.
74. Furthermore, the affected complainants, victims and family members do
not have the financial means and the legal expertise to institute and
prosecute review or other legal proceedings to bring to the attention of
the Court the unconstitutional and unlawful decisions and conduct of the
first to third respondents, and to seek appropriate remedy.
75. Having regard to the above circumstances, the applicant is entitled to act
on behalf of the affected complainants, victims and family members to
bring the present review application. It has the necessary resources and
expertise to do so.
Acting in the public interest
76. One of the criminal charges brought against General Mdluli relates to
corruption, involving the abuse of financial resources of the State,
namely the Secret Service Account, for private gain. This criminal charge
is pre-eminently serious in itself. Its gravity cannot be called into
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question where that charge of corruption is directed against one of the
most senior members of SAPS who is part and parcel of law enforcement.
77. Where a criminal charge of corruption against a senior law enforcement
agent, in this case General Mdluli, and disciplinary charges arising
therefrom, are withdrawn in a manner that violates the Constitution and
the rule of law, there is a public interest to ensure that such
unconstitutional and unlawful decisions are set aside. The public
interest is fortified by the additional consideration that General Mdluli
has been reinstated in his office as the head of crime intelligence of SAPS,
notwithstanding the unconstitutional and unlawful decisions.
78. The government of the Republic has set its face against the scourge of
corruption. It is also a state party to an international convention which
imposes obligations on it to take effective measures to fight corruption
in the public service. It follows, therefore, that allegations of corruption
levelled against General Mdluli, a senior law enforcement agent, must
not only be investigated and be prosecuted, but also that he should not
be allowed to resume office and remain in charge of the very unit of
crime intelligence which controls the Secret Service Account whose
funds form the subject-matter of the charge of corruption.
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79. That General Mdluli’s position allows him to access and influence the
investigation of the offences in which he is implicated is also relevant to
how allegations of internal corruption are dealt with by SAPS.
80. In all of the public statements they have made, neither General Mdluli
nor the first to third respondents have claimed that there is any
prejudice that General Mdluli or the respondents concerned will or
might suffer, in the event that General Mdluli is not reinstated as the
head of crime intelligence in the absence of proper investigation and
determination of the allegations against him.
81. In any event, any prejudice there may be, the existence of which I deny,
cannot outweigh the public interest in ensuring that criminal and
disciplinary charges against General Mdluli are prosecuted diligently
and without delay, and that he should not be reinstated as the head of
crime intelligence of SAPS, until the finalisation of those charges in
appropriate forums.
82. I have been advised and respectfully submit that the Constitution and
the judgments of the Courts engender a culture of transparency and
justification by organs of State entrusted with the exercise of public
power. The first to third respondents are required to comply with and
promote this culture of justification, and yet they have failed to do so by
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their silence and failure to publicly provide justification for their
decisions, in the face of widespread public condemnation of those
decisions.
83. Moreover, the fourth respondent has called upon the first and third
respondents to reinstate the criminal charges against General Mdluli and
his co-accused. They have failed to give effect to the recommendations of
the fourth respondent, and have done so without providing any reasons
for their failure.
84. From the media reports it is apparent that the first respondent or other
members of the NPA acting on his behalf had requested a legal opinion
from senior counsel on whether the murder and related charges against
General Mdluli should be withdrawn, and that the legal opinion obtained
indicated that there was no justifiable basis on which to withdraw those
charges. That too, adds to the lack of justification, accountability and
openness on the part of the first respondent and/or her office.
85. I therefore submit that the applicant is entitled to act in the public
interest to bring the present review.
86. In the light of the fact that the first to third respondents have withdrawn
the criminal and disciplinary charges against General Mdluli, without
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any justification and explanation for their conduct, particularly the
decision to reinstate him in office in the face of these charges remaining
undetermined, the applicant is compelled to approach this court to
review and set aside the impugned decisions and to direct the
respondents concerned to fulfil their constitutional functions and duties
in accordance with the mandatory orders described in the notice of
motion.
F. Background facts
87. I deal next with background facts which set out the context and scene of
the present application. For convenience, I deal with the factual
background under different headings which identify the relevant
subject-matter.
The employment of General Mdluli in SAPS
88. General Mdluli joined SAPS on 27 August 1979. After completion of basic
training he was initially stationed at Evander police station, and
thereafter transferred to Vosloorus SAPS Detective Branch on
31 January 1981.
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89. In December 1992 General Mdluli was promoted to the rank of
Lieutenant. He was thereafter appointed Branch Commander of the
Vosloorus Detective Branch. In April 1995 General Mdluli was promoted
to the rank of Captain. He was further promoted to the rank of Colonel in
March 1996. On 1 July 1999 General Mdluli became a senior
superintendent.
90. I pause to note that General Mdluli was, the time of the commission of
the murder and related offences, Branch Commander of the Detective
Branch of the very police station in the jurisdiction of which these
offences occurred.
91. He was transferred to the Southern Cape on 1 August 2000, and
promoted to director. On 1 August 2003 he was promoted to the rank of
Deputy Provincial Commissioner in the North West Province. He was
then transferred to Gauteng Province on or about 4 November 2005,
when he became the Deputy Provincial Commissioner. On 1 July 2009
General Mdluli became the National Divisional Commissioner: Crime
Intelligence in SAPS. He is thus the head of the Crime Intelligence
division of SAPS as contemplated in the SAPS Act, and the head of the
intelligence division of the SAPS as contemplated in the National
Strategic Intelligence Act, 39 of 1994 (“the NSIA”). The position is
colloquially referred to in the media as head of Crime Intelligence.
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92. There have been undenied media reports that, since his reinstatement as
head of Crime Intelligence in SAPS after the criminal and disciplinary
charges against him were withdrawn, General Mdluli’s responsibilities
in SAPS were expanded. In addition to his responsibilities as the head of
Crime Intelligence, he now controls the unit which provides VIP
protection to members of the National Executive of the Republic,
including Ministers and Deputy Ministers, as well as members of the
Provincial Executives, including the Premier and the MECs of various
Provinces. As a consequence he is apprised of the movements of all such
persons. He also exercises complete control over all surveillance that
any division of SAPS wishes to carry out in the investigation of any
matter.
93. Whilst this affidavit was being prepared, the sixth respondent
announced that General Mdluli was being “shifted” out of Crime
Intelligence. It had not yet been determined where he was being shifted
to. However, General Mdluli remains a senior officer in SAPS, with all
that that entails, despite having become one without a portfolio.
94. I have drawn attention to the above brief background, without
diminishing the career development of General Mdluli in SAPS, in order
to show that he occupies one of the most senior positions of leadership
in SAPS. The person who holds that position must enjoy public faith,
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trust and confidence concerning his ability to properly fulfil the
responsibilities that are required by that office.
95. He must similarly enjoy the respect and confidence of his colleagues and
of junior members of SAPS, for purposes of morale.
96. I have also drawn attention to the above brief background in order to
indicate that whenever there are allegations of corruption and improper
behaviour against the holder of a position of leadership in SAPS such as
the one General Mdluli occupies, there is a compelling public interest to
ensure that those allegations are properly investigated, and if there is
the necessary evidence to support them, then criminal and disciplinary
charges flowing therefrom must be prosecuted diligently. It is not in the
interest of General Mdluli or the public that the charges brought against
him be swept aside without being ventilated and determined in open
court.
Criminal charges against General Mdluli
97. There are two sets of criminal charges that have been brought against
General Mdluli, those relating to murder, and related offences, and those
relating to fraud and corruption, and related offences.
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98. General Mdluli was arrested on 31 March 2011 on a charge of murder, it
being alleged that he was party to the unlawful and intentional killing of
Mr Tefo Abel Ramogibe (“the deceased”), who, at the time, was married
to Ms Consolation Tshidi Buthelezi, alleged to have had a love
relationship with General Mdluli.
99. Upon his arrest, a docket under case number CAS 340/02/1999 for a
charge of murder was opened against General Mdluli and his co-accused.
The affidavit prepared by Colonel Roelofse annexed hereto and marked
“FA3” describes in detail the investigation which was conducted by him
concerning the murder charge.
100. General Mdluli was also charged with intimidation, kidnapping, assault
with intent to commit grievous bodily harm and defeating the ends of
justice. I refer to annexure “FA3” hereto which details the complainants
in respect of each of these charges and the extent of investigation
relating to them, conducted by Colonel Roelofse.
101. On 20 September 2011 General Mdluli was arrested and charged with
fraud, theft and corruption, as well as money laundering. The charges
arise from the unlawful utilization of the funds held in the Secret Service
Account for the private benefit of General Mdluli and his spouse,
Ms Theresa Lyons. I refer to the affidavit made by Lieutenant-
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Colonel Viljoen in support of the application for the warrant of arrest of
General Mdluli and his co-accused for these charges, annexed hereto and
marked “FA4”.
102. A docket under case number CAS 155/07/2011 was opened in respect
of these charges. General Mdluli was then brought before the Specialized
Commercial Crimes Court in Pretoria, and was granted bail. The case
was postponed to 14 December 2011.
103. I refer again to the report from Colonel Roelofse to the Commander of
the Anti-Corruption Task Team, annexure “FA1” referred to above,
which describes the nature and extent of the charges of fraud,
corruption and money laundering, and how those charges were
ultimately withdrawn, upon the instruction of the third respondent.
104. Advocate C Smith was appointed to lead the prosecution of General
Mdluli in respect of the charges brought against him for fraud and
corruption. He was supervised by Advocate G Breytenbach. They were
instructed by the third respondent to withdraw the charges against
General Mdluli. They advised the third respondent against the
instruction to withdraw the charges. As appears from paragraph 66 of
annexure “FA1” hereto, the charges were eventually withdrawn in the
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Specialized Commercial Crimes Court in Pretoria on or about
14 December 2011, as a result of the instruction of the third respondent.
105. It is important to direct the attention of the court to the recent article
which appeared on page 4 of the Sunday Times, 6 May 2012, which
indicates that Advocate Breytenbach addressed a 200-page
memorandum to the first respondent requesting her to reconsider the
decision to withdraw the charges against General Mdluli. The first
respondent has not denied the correctness or otherwise of that article. A
copy of the relevant article is annexed, marked “FA5”.
106. I have drawn attention to the above facts in order to show that the
investigation of the charges brought against General Mdluli and his
prosecution on those charges is a product of fearless and commendable
hard work by law enforcement agents from both SAPS and the NPA.
They are not solely a product of political conspiracy be other senior
members of SAPS against General Mdluli, as he has asserted in order to
deflect a logical prosecution of the charges to finality. A letter from
General Mdluli to the second respondent, amongst others, making such
assertions, is annexure “FA6” hereto.
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The withdrawal of the criminal charges
107. The circumstances relating to the withdrawal of criminal charges against
General Mdluli are shrouded by secrecy, primarily because neither the
first nor third respondents took it upon themselves to explain to the
public those circumstances and the reasons for the withdrawal of the
charges. This is surprising, and at odds with the prosecution policy
adopted by the office of the National Director of Public Prosecutions
which requires that the first and third respondents should not only act
transparently but also give reasons for their decisions.
108. A copy of the relevant prosecution policy is annexed, marked “FA7”. I
draw attention to Part 6 of the prosecution policy which makes it clear
that the conduct of a member of the NPA who considers a withdrawal of
charges against an accused must be transparent, and his decision to
withdraw a charge or charges against an accused must be accompanied
by reasons.
109. Neither the first nor third respondent acted transparently in respect of
the decisions to withdraw the charges against General Mdluli. They have
not provided reasons for those decisions. They have acted contrary to
the legal yardstick that they have set for themselves, in addition to
acting inconsistent with the Constitution and the rule of law.
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110. I hasten to add that it is not a matter of practical difficulty for the first
and third respondents to have acted transparently and to provide
reasons. There is precedent for a transparent process and the giving of
justifiable reasons in respect of a decision to withdraw charges. It will be
recalled that when Advocate Mokotedi Mpshe SC decided to withdraw
criminal charges against President J G Zuma he called a press conference
and gave a full account of the circumstances, considerations and reasons
which, he said, had led him to make that decision.
111. The circumstances of the present case are not dissimilar, and are, in fact,
more compelling, in as much as they involved the institution and
withdrawal of serious criminal charges against a senior ranking public
official, on a matter which has generated widespread and continuing
public controversy.
112. From the contents of annexure “FA1” hereto, it is clear that the third
respondent took the decision to withdraw the criminal charges of
corruption and fraud against General Mdluli by taking into account
representations made to him on behalf of General Mdluli.
113. He did not call for and has not received representations from interested
persons or groups. Persons who have an interest in the prosecution of
these offences, include the Anti-Corruption Task Team, the second
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respondent, the head of the Directorate of Priority Crime Investigation
(the Hawks), and the fourth respondent. It is not clear why
representations from these individuals were not called for.
114. It is similarly clear that representations from the complainants, victims
and family members of the deceased in respect of the charges of murder,
intimidation, kidnapping, assault with intent to do grievous bodily harm
were not sought when the third impugned decision was taken.
115. From the media reports, particularly the article which appears in City
Press, 25 March 2012, a copy whereof is annexed, marked “FA8”, the
fourth respondent appears to have investigated circumstances which led
to the withdrawal of the fraud and corruption charges against General
Mdluli and recommended that those charges should be re-enrolled.
116. To date, the request of the fourth respondent has not been positively
received and acted upon by the first and/or third respondents. No
reasons have been furnished for their refusal to accept the
recommendation of the fourth respondent for the re-enrolment of the
criminal charges.
117. I have already indicated that a legal opinion from senior counsel was
requested and obtained at the instance of the office of the first
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respondent, concerning the withdrawal of charges. Again, it is not clear
and reasons have not been furnished why the first respondent has not
acted in accordance with the legal opinion he obtained, not to withdraw
but to proceed with the prosecution of the charges against General
Mdluli.
118. All of the above factors show that the withdrawal of the charges against
General Mdluli is not only unconstitutional but also reviewable. I deal
with the grounds of review in section H of this affidavit.
The institution and withdrawal of disciplinary proceedings against
General Mdluli
119. I am not aware precisely when the disciplinary proceedings were
instituted against General Mdluli. It is clear, however, from the contents
of annexures “FA1” and “FA3” hereto that those charges were instituted
by the second respondent against General Mdluli. I invite the second
respondent to indicate when those charges were instituted, what those
charges are and the status thereof by the time they were withdrawn.
120. The second respondent is reported to have stated that he took the
decision to withdraw charges as a result of instructions from authorities
“beyond” him. I invite the second respondent to explain to the Court who
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instructed him to take the decision to withdrawn the disciplinary
charges against General Mdluli.
121. I also add that annexure “FA8” hereto indicates that the fourth
respondent recommended that the second respondent reinstate
disciplinary charges against General Mdluli. Thus far, the second
respondent has not positively acted upon the request. He has also not
given reasons for his failure or refusal to act in accordance with the
recommendation of the fourth respondent.
The reinstatement of General Mdluli
122. After the withdrawal of the criminal charges and disciplinary charges
against him, General Mdluli resumed office as the head of Crime
Intelligence of SAPS, with effect from 31 March 2012. I refer to a copy of
the article which appears on page 5 of the Sunday Times, 6 May 2012
which indicates that General Mdluli confirmed that he has now resumed
his official duties as the head of Crime Intelligence in SAPS. A copy of
that article is annexed hereto and marked “FA9”.
123. As I have already indicated General Mdluli’s official responsibilities were
extended to include control of the SAPS unit which provides VIP
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protection services to members of the National and Provincial Executive
Authority of the Republic.
124. There has been a recent announcement in Parliament by the sixth
respondent, stating that General Mdluli will be “shifted” from his post,
but it is not clear where he would be shifted to. General Mdluli remains a
senior official in SAPS, albeit without portfolio.
G. The constitutional and statutory powers, functions and duties of the
affected public functionaries
125. The applicant seeks to review the impugned decisions in the context of
the following constitutional and statutory matrix relating to the powers,
functions and duties of the first to fifth respondents. I describe this
constitutional and statutory matrix in order to show how the first to
third respondents failed to properly fulfil their functions and duties. The
powers, functions and duties of the fifth respondent are relevant
because they highlight the importance of the impugned decisions to the
constitutional project and the rule of law.
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The National Director of Public Prosecutions (the First Respondent)
and the National Prosecuting Authority
126. Section 179(1) of the Constitution establishes the National Prosecuting
Authority (“the NPA”) which is headed by the National Director of Public
Prosecutions (“the NDPP”) who is appointed by the President. This is the
office of the first respondent, which is currently occupied by an “acting”
appointment.
127. Section 179(2) of the Constitution makes it clear that the NPA is the only
organ of State which is authorized to institute and prosecute criminal
offences. It does so not in its own interest, but in the public interest,
acting on behalf of the State. I emphasize that the State in this context
implies the representative of the people of the Republic.
128. In terms of section 179(4) of the Constitution, the NDPP and other
members of the NPA are required to fulfil their functions without fear,
favour or prejudice. That provision of the Constitution requires that
national legislation must be implemented in order to give effect to this
constitutional requirement. I shall deal with the provisions of the NPA
Act, which is the national legislation contemplated in section 179(4) of
the Constitution.
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129. Section 179(5)(d) of the Constitution empowers the NDPP to review a
decision to prosecute or not to prosecute a criminal charge or charges
against a person, after considering representations within a time period
specified by the NDPP from an accused person, the complainant or any
person or party whom the NDPP considers to be relevant, in connection
with the making of the representations.
130. I draw attention to the provisions of section 179(5)(d) of the
Constitution because the third respondent made the decision to
withdraw the fraud and corruption charges after he obtained
representations made by or on behalf of General Mdluli, on
17 November 2011. Similarly, the murder charges were withdrawn
without compliance with section 179(5)(d).
131. I also draw attention to the provisions of section 179(5)(d) of the
Constitution because it is relevant to the prosecution policy referred to
earlier in this affidavit, annexure “FA7”, which also contains guidelines
that must be followed whenever the first respondent or any other
person authorized by him is called upon to consider a request for
withdrawal of criminal charges against that person.
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132. The first respondent’s powers, functions and duties as set out in the
Constitution are reflected and expanded upon in sections 20 - 22 of the
NPA Act.
133. The powers, functions and duties of the first respondent are integral to
the democratic and open society envisaged in the Preamble to the
Constitution, and to the functioning of the State envisaged by the
Constitution. It has been noted by the Supreme Court of Appeal in the
Democratic Alliance judgment mentioned earlier in this affidavit that the
powers to investigate and prosecute are central to the preservation of
the rule of law. The manner in which these powers are exercised is,
therefore, also central to the preservation of the rule of law.
The National Commissioner: South African Police Service (the Second
Respondent)
134. In terms of section 205(3) of the Constitution, the objects of SAPS are “to
prevent, combat and investigate crime, to maintain public order, to
protect and secure inhabitants of the Republic and their property, and to
uphold and enforce the law.”
135. The second respondent is appointed in terms of section 207 of the
Constitution to “control and manage the police service” in accordance
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with the national policing policy and the directions of the responsible
Minister.
136. The SAPS Act provides in section 11 that the second respondent has the
powers, functions and duties set out in section 218(1) of the Interim
Constitution, which remains in force by virtue of section 24 of Schedule
6 to the Constitution.
137. Thus, in addition to the responsibilities outlined earlier in this affidavit,
the second respondent is responsible for, inter alia,
137.1. maintaining “an impartial, accountable, transparent and
efficient police service”;
137.2. preserving the Republic’s internal security;
137.3. investigating and preventing organized crime and crime
requires “national investigation and prevention or specialized
skills”, and
137.4. keeping and providing crime intelligence data.
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138. Once again, the powers, functions and duties of the second respondent,
like those of the first respondent, are integral to the open and
democratic society sought to be established by the Constitution, and to
the rule of law. The manner in which these functions are carried out
would, similarly, be central to the rule of law.
The Head: Specialised Commercial Crime Unit (the Third
Respondent)
139. The third respondent is the head of the Specialised Commercial Crime
Unit, a “business unit” within the NPA.
140. As a member of the NPA, the third respondent has the obligation to carry
out his responsibilities without fear, favour or prejudice, and to do so in
accordance with the rule of law.
The Inspector General of Intelligence (the Fourth Respondent)
141. The fourth respondent’s functions, in terms of section 7(7) of the
Intelligence Services Control Act, 40 of 1994 (also known as the
Intelligence Services Oversight Act), and in relation to SAPS, are, inter
alia:
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141.1. to monitor compliance with the Constitution, law and applicable
policies;
141.2. to review intelligence and counter-intelligence services;
141.3. to receive and investigate complains about
141.3.1. maladministration;
141.3.2. abuse of power;
141.3.3. non-compliance with the Constitution, law and
applicable policies;
141.3.4. offences in terms of the Prevention and Combating of
Corrupt Activities Act, 2004, and
141.3.5. improper enrichment of any person as a result of an
act or omission of a member of SAPS, and
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141.4. to perform any functions designated to the office by the
President or relevant Minister.
142. The fourth respondent therefore performs a key function in ensuring
that SAPS and its members exercise their powers, perform their
functions and carry out their duties in accordance with the Constitution
and the rule of law.
143. The fourth respondent does not have the power to enforce her decisions
or recommendations.
The Divisional Commissioner: Crime Intelligence (the Fifth
Respondent)
144. General Mdluli is the head of the Crime Intelligence Division of SAPS. The
crime intelligence functions of SAPS are dealt with in the NSIA.
145. Crime intelligence is defined in the NSIA as “ intelligence used in the
prevention of crime or to conduct criminal investigations and to prepare
evidence for the purpose of law enforcement and the prosecution of
offenders”.
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146. The Crime Intelligence Division of SAPS has the following functions, in
terms of section 2(3) of the NSIA:
“(a) to gather, correlate, evaluate, co-ordinate and use crime
intelligence in support of the objects of the South African
Police Service as contemplated in section 205 (3) of the
Constitution;
(b) to institute counter-intelligence measures within the
South African Police Service; and
(c) to supply crime intelligence relating to national strategic
intelligence to Nicoc.”
147. The Division also has the duty to support the Directorate for Priority
Crime Investigation.
148. Functions of the head of Crime Intelligence, in terms of the SAPS Act
read with the NSIA, include:
148.1. sitting as a member of the National Intelligence Co-ordinating
Committee (“Nicoc”), which co-ordinates all intelligence
gathered by National Intelligence Structures and interprets it for
use of the State and Cabinet.
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148.2. issuing security clearances for persons to be appointed to the
Directorate for Priority Crime Investigation.
149. General Mdluli’s responsibilities therefore extended, as head of crime
intelligence, to all intelligence gathered by all intelligence services, in
addition to crime intelligence.
150. In the position he occupied, General Mdluli had access to all intelligence
and intelligence gathering processes. In addition, he was able to decide
what intelligence is used and what is discarded, and to focus the manner
and direction of intelligence gathering.
151. As a part of SAPS, General Mdluli has a duty to exercise his powers, carry
out his functions and fulfil his duties in accordance with the
Constitutional objects set out at section 205(3) of the Constitution.
H. Grounds of review
152. In this section of the affidavit I describe the grounds on which the
impugned decisions are susceptible to review. I deal with the grounds of
review separately in respect of each of the impugned decisions.
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The first impugned decision
153. As I have already indicated, the first impugned decision, in terms
whereof the criminal charges of fraud, corruption and money laundering
instituted against General Mdluli were withdrawn on the instruction of
the third respondent, was taken on 6 December 2011.
154. The first impugned decision is reviewable on the following grounds:
154.1. It was made by the third respondent when, in law, he did not
have the power to make that decision. In terms of
section 179(5)(d) of the Constitution, the power to review,
reconsider or withdraw criminal charges against an accused
person are vested in the first respondent and not the third
respondent.
154.2. The provisions of section 22(2)(c) of the NPA Act are to the
same effect. They vest the power to review, reconsider or
withdraw criminal charges against an accused person in the first
respondent, but merely require her to, amongst others, consult
with the relevant Director of Public Prosecutions.
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154.3. The legal representatives of FUL have also considered the
provisions of sections 23 and 24 of the NPA Act which deal with
the powers, functions and duties vested upon a Deputy Director
and a Director in the NPA. None of the provisions of those
sections of the NPA Act expressly confer the power to review,
reconsider or withdraw charges against an accused person to a
Deputy Director or Director of the NPA. Moreover, those
provisions make it clear that they are subject to the overriding
provisions of section 179 of the Constitution. I therefore submit
that the third respondent cannot rely on the provisions of
sections 23 or 24 of the NPA Act in order to justify the power he
unlawfully exercised.
154.4. I therefore submit that the third respondent acted
inconsistently with section 179(5)(d) of the Constitution and
section 22(2)(c) of the NPA Act, when he usurped and exercised
powers he did not have. He therefore acted unconstitutionally
and in violation of the rule of law and the principle of legality.
155. The second ground of review is that the first impugned decision was
made in a manner which is inconsistent with the requirements of
section 179(5)(d)(iii) of the Constitution, as well as section 22(2)(c) of
the NPA Act.
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156. It will be recalled that one of the requirements for the lawful exercise of
the power to withdraw a charge or charges against an accused person is
that the first respondent must consider representations from, amongst
others, a complainant and any other person the first respondent
considers relevant.
157. In this case, the third respondent failed to comply with that
constitutional requirement. He did not call for or consider
representations from any person that he considered relevant. There
were relevant persons from whom the third respondent should have
considered representations, before he issued instructions to withdraw
the charges of fraud, corruption and money laundering. These persons
include:
157.1. The investigating officers who investigated the offences,
gathered the necessary evidence and compiled a report on the
weight of the evidence against General Mdluli. I refer, in this
regard, to Colonel Roelofse and Lieutenant-Colonel Viljoen.
157.2. The head of the Hawks, General A Dramat, whose unit is
primarily responsible for investigation of corruption in the
public service, and was tasked with the investigation into
General Mdluli’s conduct.
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157.3. The second respondent, who had taken the decision to suspend
General Mdluli from office and instituted disciplinary charges of
misconduct, as a result of the criminal charges of fraud,
corruption and money laundering.
158. All of the above persons were known to the third respondent and their
interests in the decision he made was known to him. He could not
lawfully make the decision to withdraw charges without regard to those
interests and without regard to considering representations based on
those interests.
159. I therefore submit that the first impugned decision is reviewable, as it is
inconsistent with the relevant provisions of section 179(5)(d)(iii) of the
Constitution, and also section 22(2)(c) of the NPA Act.
160. The third ground of review is that the first impugned decision is
irrational as it was made against the advice given to the third
respondent by Advocate Breytenbach who was responsible for the
prosecution of the charges of fraud, corruption and money laundering.
It was also made against the opinion of senior counsel that the charges
should not be withdrawn.
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161. The irrationality becomes more profound in the light of the
recommendation by the fourth respondent that the charges be
reinstated. This recommendation of reinstatement of the charges is
justifiable in the light of the weight of the evidence gathered by the
investigating officers to support the charges.
162. I therefore submit that the first impugned decision is subject to
rationality review and is inconsistent with the rule of law and the
principle of legality.
163. In addition to the above grounds of review, the first impugned decision
is open to review in terms of the following provisions of PAJA:
163.1. section 6(2)(a)(i), on the ground that it was made by the
administrator when it was not authorized by the empowering
provision to make that decision, namely, section 179(5)(d) of
the Constitution and section 22(2)(c) of the NPA Act;
163.2. section 6(2)(b), on the ground that it was made without
complying with the material conditions prescribed by the
empowering provision, namely, section 179(5)(d)(iii) of the
Constitution and section 22(2)(c) of the NPA Act;
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163.3. section 6(2)(e)(vi), on the ground that it was taken arbitrarily
and capriciously, as the third respondent only considered
representations from General Mdluli and did not consider it
necessary to call for and consider representations from other
relevant parties who were known to him and whose interests
were directly affected by the first impugned decision;
163.4. section 6(2)(f)(ii)(cc), on the ground that it was not rationally
connected to the information that was placed before the third
respondent. That information includes the advice by Advocate
Breytenbach;
163.5. section 6(2)(h), on the ground that it was so unreasonable that
no reasonable decision-maker could have made it. Having
regard to the weight of the evidence gathered in support of the
charges, the advice and opinion at the disposal of the third
respondent, no reasonable decision-maker would have arrived
at a decision to withdraw those charges.
164. I am aware that, on a previous occasion, the first respondent contended
that a decision to withdraw charges against an accused person is not
open to review because it does constitute an administrative action.
Should the first and/or third respondent repeat that contention in these
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proceedings, I submit that the contention is wrong. I have been advised
that the decision to withdraw charges constitutes an administrative
action that is open to review in terms of PAJA.
The second impugned decision
165. The second impugned decision relates to the withdrawal of disciplinary
charges against General Mdluli, on or about 29 February 2012, that was
made by the second respondent or other members of SAPS acting on his
authority.
166. I submit that the second impugned decision is open to legality review on
the following grounds:
166.1. First, it was made by the second respondent, apparently acting
upon the dictation or instruction of authorities “beyond” him.
He therefore acted inconsistently with the provisions of
section 207(1) of the Constitution, which impose the
constitutional obligation upon him, and no other authority
“beyond” him, to control and manage SAPS. His obligation in
that regard excludes a dictation or instruction from authorities
“beyond” him.
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166.2. Secondly, the disciplinary charges were instituted against
General Mdluli in terms of the Regulations made under the SAPS
Act. The second respondent had the obligation to give effect to
those Regulations, as he had the constitutional object of
upholding and enforcing the law, in terms of section 205(3) of
the Constitution.
166.3. By acting upon the dictation or instruction from authorities
“beyond” him, the second respondent acted inconsistently with
the provisions of section 205(3) of the Constitution.
166.4. Thirdly, the second respondent acted inconsistently with the
preserved provisions of section 218(1) of the Interim
Constitution read with section 11 of SAPS Act, in that he did not
act in a manner which was impartial, accountable, transparent
and likely to maintain the efficiency of SAPS when he withdrew
the disciplinary charges against General Mdluli.
166.5. Moreover, the withdrawal of the disciplinary charges will have
the effect of undermining, within SAPS, the values of
impartiality, accountability, transparency and efficiency, which
must be maintained in accordance with section 11 of the SAPS
Act read with section 218(1) of the Interim Constitution.
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167. I therefore submit that the second impugned decision is open to a
legality review and violates the rule of law and the principle of legality.
The third impugned decision
168. The third impugned decision relates to the withdrawal of the charges of
murder, kidnapping, intimidation and assault with the intent to do
grievous bodily harm, and defeating the ends of justice, which decision
was made on or about 2 February 2012 by the first respondent or
officials acting on her behalf.
169. The third impugned decision is open to legality review on the following
grounds:
169.1. It was made in a manner inconsistent with the express
requirement of section 179(5) of the Constitution, in that no
representations from the complainants, victims and family
members affected by the criminal charges were called for and
considered before the third impugned decision was made.
169.2. Secondly, it was made in violation of section 10 of the
Constitution which guarantees a right of dignity to the
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complainants, victims and family members affected by the
second impugned decision.
169.3. The affected complainants, victims and family members are
entitled to justice, and to see that justice is being done by the
prosecution of General Mdluli for the charges brought against
him. They have been deprived of the right to receive justice and
the opportunity to realize a sense of justice as a result of the
withdrawal of the charges.
169.4. Thirdly, it was made in violation of section 33 of the
Constitution which confers upon the affected complainants,
victims and family members a right to procedurally fair
administrative action. The third impugned decision was made
without calling for and receiving representations from the
affected complainants, victims and family members, and thus
deprived them of the right to administrative action which is
procedurally fair.
170. In addition, the third impugned decision is open to rationality review in
that the criminal charges were withdrawn when there was compelling
evidence to support them. I have already referred to the affidavits made
by the investigating officers, particularly Colonel Roelofse, which
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indicate the extent of the investigations he conducted and the evidence
obtained to support those charges. That evidence justifies the
prosecution rather than the withdrawal of the charges.
171. Furthermore, the third impugned decision is subject to review in terms
of the following provisions of PAJA:
171.1. section 6(2)(b), on the ground that the first respondent failed to
comply with the material requirement of the empowering
provision, namely, section 179(5)(d)(ii) and (iii) of the
Constitution;
171.2. section 6(2)(f)(ii)(cc), on the ground that it was not rationally
connected to the information placed before the first respondent;
171.3. section 6(2)(h), on the ground that it is so unreasonable that no
reasonable decision-maker would make. In the light of the
evidence that was gathered in support of the charges, the
decision to withdraw those charges was so unreasonable that
no reasonable decision-maker would make it, and
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171.4. section 6(2)(i), on the ground that it is unconstitutional, as it is
inconsistent with sections 10, 33 and 179 of the Constitution.
The fourth impugned decision
172. The fourth impugned decision relates to the reinstatement of General
Mdluli on or about 31 March 2012, after the withdrawal of criminal
charges against him. As a result of the decision to reinstate him, General
Mdluli resumed his functions and duties as the head of Crime
Intelligence at SAPS.
173. I submit that the fourth impugned decision is subject to review for its
legality on the following grounds:
173.1. It violates section 218(1) of the Interim Constitution in that it
imperils the values of impartiality, accountability, transparency
and efficiency within SAPS. By reinstating General Mdluli in the
face of criminal charges against him, SAPS is sending a public
message that it tolerates, or is unable to deal with, allegations of
corruption and other criminal conduct of a serious nature
within its ranks. That is at odds with the prescribed values.
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173.2. It also violates section 205(2) of the Constitution, in that SAPS
will not be able to discharge its responsibilities effectively, when
it has in its midst a head of Crime Intelligence (or a senior
officer with an as yet unknown portfolio) who faces allegations
of corruption and other serious criminal offences which have
not been properly ventilated and concluded in a court of law.
174. The fourth impugned decision is also subject to rationality review in that
there was no legitimate governmental purpose to justify the decision to
reinstate General Mdluli. As I have already indicated, none of the
respondents have claimed that General Mdluli or SAPS will be
prejudiced if he is not reinstated until the finalization of the charges
against him. In any event, any prejudice he or the respondent may
demonstrate, would not outweigh the need to maintain the values which
SAPS is required to maintain, and the obligation to ensure that it
operates effectively and efficiently.
175. I therefore request the honourable Court to review the impugned
decisions on the grounds set out above.
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I. Mandatory orders
176. I have already shown that the impugned decisions reflect clear and
widespread violations of the relevant provisions of the Constitution.
Should they be reviewed and set aside, then, the first to third
respondents will be obliged to comply with the constitutional
obligations I have already identified.
177. I stress that in terms of section 237 of the Constitution, all organs of
State, including the first to third respondents, are obliged to fulfil duties
imposed upon them under the Constitution diligently and without delay.
In the light of this constitutional imperative, there is a well-established
basis for the grant of the mandatory orders described in the notice of
motion.
J. Rule 16A notice
178. The issues raised in this application are of fundamental constitutional
importance. The applicant therefore has been advised to issue a notice in
accordance with the requirements of Rule 16A, in order to inform
interested parties of the constitutional issues that are raised in this
application. A copy of that notice accompanies the notice of motion.
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K. Conclusion
179. I respectfully submit that the present matter requires to be heard on an
urgent basis as regards Part A of the Notice of Motion, and on an
expedited basis as regards Part B. As indicated, General Mdluli has not
been suspended from office, but continues to exercise the authority of
his high rank. It is not in the public interest, nor in any bona fide interest
of General Mdluli, or the other respondents, for the very serious issues
raised by this application to be heard in the ordinary course. Inherent
urgency attaches to the issues. As regards Part B, although the grant of
Part A will ensure that does not continue to exercise any daily authority
as a senior police officer, it is clearly vital that a final determination
regarding the four impugned decisions be made as soon as possible, in
the public interest and in the interests of the respondents themselves. I
accordingly understand that the Deputy Judge President will be asked to
issue directions regarding the conduct of Part B of the matter, and
particularly as regards an expedited date of hearing for the final relief.
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180. In the light of the facts and submissions set out above, I ask the court to
grant an order as set out in the notice of motion.
_________________________________
DEPONENT
I CERTIFY that the deponent has acknowledged that she knows and understands
the contents of this affidavit has no objection to taking the prescribed oath. Thus
done, signed and sworn to before me, at on this the day of MAY
2012, in terms of the Regulations contained in Government Notice No. R.1258
dated 21 July 1972 (as amended) and Government Notice No. R.1648 dated
19 August 1977 (as amended), which have been complied with.
________________________________________
COMMISSIONER OF OATHS