23 September 2013

South Africa: Decision on Mdluli was Illegal - Judge

Photo: Helen Kilbey/allAfrica.com
Police on duty.

Pretoria — The decision to withdraw fraud and corruption charges against former police crime intelligence head Richard Mdluli was slated by the High Court in Pretoria on Monday.

Judge John Murphy's written judgment, handed down on Monday, set aside the decisions taken in 2011 by the National Prosecuting Authority's specialised commercial crimes unit head, advocate Lawrence Mrwebi.

"The charges of fraud, corruption and money laundering were initiated against Mdluli as a result of a comprehensive investigation by Colonel (Peter) Viljoen that uncovered the evidence in support of his prosecution," the judge said.

"The prosecutors, the DPP (director of public prosecutions) and the IGI (inspector general of intelligence) all opposed the withdrawal of those charges. (Prosecutor Glynnis) Breytenbach wrote a detailed memo to the NDPP (Nomgcobo Jiba) cogently motivating why the charges should not be withdrawn."

Murphy said because of his "incorrect understanding", Mrwebi "saw no need to engage with the merits" of the case against Mdluli and referred the matter to the IGI.

"He took the decision without regard to the merits of a prosecution in the interests of justice, and thus ignored mandatory relevant considerations," said Murphy.

"The decision and instruction by Mrwebi to withdraw the fraud and corruption charges must be set aside. It was illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it."

The spy boss allegedly used state coffers to pay for his private BMW. He allegedly registered his relatives, girlfriends, and their families as covert intelligence operatives and paid them as such.

On Monday, Murphy criticised the decision by the director of public prosecutions for south Gauteng, Andrew Chauke, to withdraw murder charges against Mdluli.

The court censured Chauke's decision to send the matter of Oupa Ramogibe's death for an inquest, instead of a prosecution.

"[An inquest] is not aimed at establishing anyone's guilt and could not competently do so. An inquest is no substitute for criminal prosecution because it cannot determine guilt.

"Chauke's motive for referring the matter to an inquest is therefore dubious. The identity of the deceased was known, as was the cause of his death. The only outstanding case was the culpability of Mdluli."

Murphy said Chauke's reliance on the inquest was irrational.

Ramogibe died in February 1999 after marrying Tshidi Buthelezi, the mother of Mdluli's child.

The Ramogibe family has accused Mdluli of killing him. Mdluli however claimed there was a plot to implicate him in the crime and that the Ramogibe family was working with the police.

Murphy said evidence against Mdluli was set out in affidavits filed at the inquest proceedings. This included affidavits from witnesses claiming Mdluli intimidated, assaulted, and/or kidnapped them.

"There are affidavits from seven witnesses who personally witnessed Mdluli threatening to kill Ramogibe, or threatening and assaulting other people," said Murphy.

"This evidence presents a compelling prima facie case against Mdluli."

Murphy ordered the national director of public prosecutions (NDPP) to reinstate criminal charges and national police commissioner Riah Phiyega to restore disciplinary proceedings against Mdluli "without delay".

The decision to reinstate Mdluli as head of crime intelligence was set aside. The SA Police Service was also criticised by the high court for its handling of the matter.

Murphy said the withdrawal of disciplinary charges against Mdluli by then acting national commissioner of police, Lt-Gen Nhlanhla Mkhwanazi, and his reinstatement, were "in dereliction of his constitutional and statutory duties".

"By withdrawing the disciplinary proceedings against Mdluli and allowing him to resume his senior position in the SAPS when there were serious and unresolved allegations against him, the acting commissioner frustrated the proper functioning of the SAPS Act," said Murphy.

"He also undermined the integrity of SAPS and failed to ensure that it operated transparently and accountably."

Phiyega's conduct was questioned.

"She apparently sees no need to place any obstacles in the way of Mdluli's return to work, despite her constitutional duty to investigate allegations against him and the unfeasibility of his holding of a position of trust at the highest level in SAPS," the judge said.

"For as long as there are serious unresolved questions concerning Mdluli's integrity, he cannot lawfully act as a member and senior officer of the SAPS, or exercise the powers and duties associated with high office in the SAPS."

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