Mdluli not above the law, says court
Thursday,
26/09/2013 - 12:04
A lengthy and detailed written judgement, handed
down by Judge John Murphy, has ordered the re-instatement and resumption of all
charges against former crime intelligence boss Richard Mdluli.Former police
crime intelligence boss Richard Mdluli will still have his day in court, if
Judge John Murphy’s new judgements are carried out.
In the
Pretoria High Court on Monday, Murphy’s written judgement ruled that various
criminal charges against Mdluli, which had been withdrawn, must be reinstated
by the national director of
public prosecutions and that
national police commissioner Riah Phiyega must proceed with the disciplinary
action that had also been aborted.
Murphy
noted that the withdrawal of fraud and corruption charges against Mdluli “was
illegal, irrational, based on irrelevant considerations and material errors of
law, and ultimately so unreasonable that no reasonable prosecutor could have
taken it.” It must therefore be set aside, he concluded.
He
criticised the decision to withdraw the murder charges against Mdluli in the
1999 death of Oupa Ramogibe, in order to carry out an inquest into Ramogibe’s
death.
“An
inquest is an investigatory process held in terms of the Inquests Act which is
directed primarily at establishing a cause of death where the person is
suspected to have died of other than natural causes,” explained Murphy. “In
relation to the killing of the deceased, given that he was shot three times by
unknown assailants, there is no doubt that an offence was involved,” he added
later.
An
inquest can’t take the place of criminal proceedings, said Murphy, because it
can only determine cause of death and not who carried out the deed. In any
case, the inquest could only apply to the murder charge and not to the other 17
charges brought against Mdluli.
Murphy
said that it was hard to understand why Andrew Chauke, the director of public
prosecutions for south Gauteng, had not proceeded with the charges of attempted
murder, assault, kidnapping, and more, after the inquest. “The decision to
withdraw the murder and related charges was taken in the face of compelling
evidence for no proper purpose, is irrational and therefore reviewable on
legality and rationality grounds.”
He set
aside Chauke’s decision to carry out an inquest, and ordered that the murder
and related charges, the charges of fraud and corruption, and the disciplinary
proceedings all be re-instated. He further ordered that Mdluli’s re-instatement
by then acting commissioner of the South
African Police Service (SAPS) Lieutenant General Nhlanhla Mkhwanazi, in March 2012, be set
aside.
Taking on
the big guns
In June
2012 Corruption Watch, together with Social
Justice Coalition, sought
to intervene as co-applicants in a case brought by lobby group
Freedom Under Law (FUL) against the National
Prosecuting Authority (NPA) and five other respondents – including Mdluli. The
case challenged the decisions taken to withdraw criminal and disciplinary charges
against Mdluli, including the withdrawal of corruption charges.
The two
co-applicants later withdrew their
application, fearing
that it would cause delays in the FUL case. “It is in the interests of justice
that the matter be adjudicated as soon as possible,” said Corruption Watch
executive director David Lewis at the time.
FUL
sought to have four crucial decisions overturned:
- the decision taken by the
NPA’s Lawrence Mrwebi on 5 December 2011 to withdraw the corruption and
related charges;
- the decision taken on 1
February 2012 by Chauke to withdraw the murder and related charges;
- the decision taken by
Mkhwanazi, on 29 February 2012, to withdraw the disciplinary proceedings;
- the decision taken by
Mkhwanazi, on 31 March 2012, to reinstate Mdluli as the head of crime
intelligence within SAPS.
The
organisation also asked the judge to order that all charges against Mdluli be
re-instated and carried to their conclusion, without delay.
Career of
crime
At the
end of March 2011 Mdluli was charged with a number of offences in connection
with the death in 1999 of Ramogibe, who had married Tshidi Buthelezi, Mdluli’s
former girlfriend and the mother of his child. The 18 charges included
intimidation, kidnapping, assault with intent to do grievous bodily harm,
murder, attempted murder, and conspiracy to commit murder, as well as defeating
the ends of justice.
Bheki
Cele, police commissioner at the time, suspended Mdluli in May 2011 and started
disciplinary proceedings against him.
In
September 2011 Mdluli faced further charges of fraud, theft and
money-laundering, as well as nepotism and the misuse of police funds – these
charges were provisionally withdrawn by Mrwebi, in December 2011.
The
murder charges, too, were provisionally withdrawn in February 2012 pending the
outcome of an inquest. Two weeks later the disciplinary proceedings, too, came
to a sudden end and the crime boss, who had been suspended from SAPS, was
reinstated, but later deployed in a different department. He was suspended
again on 27 May, but had the suspension lifted, only to see that decision
reversed after an urgent application by SAPS. Since then Mdluli has been
suspended on full pay.
On 2
November 2012, magistrate Jurg Viviers ruled in the Boksburg Magistrate’s Court
that the theory that Mdluli had murdered Ramogibe was not the only possible
explanation, and further, that there was evidence of a plot against him.
Viviers cleared Mdluli, and three men accused with him, of any involvement in
the murder.
http://www.corruptionwatch.org.za/content/mdluli-not-above-law-says-court
