Further update: Mdluli matter
November 27, 2013
The hearing in the Mdluli case not having been concluded on 24 October, the applications for leave to appeal against Judge Murphy's judgment will be heard in the North Gauteng High Court on Monday 2 December. For the reasons given on 23 October [below], FUL is not opposing the applications. FUL's application for the extension or reinstatement of the interdict barring General Mdluli will be heard at a later date.
Beatrice Mtetwa acquitted
November 26, 2013
Today Harare Magistrate Rumbidzai Mugwagwa delivered a verdict of not guilty in the trial of prominent Zimbabwe human-rights lawyer and Freedom Under Law director Beatrice Mtetwa.
Ms Mtetwa had faced charges of defeating or obstructing the course of justice by her conduct toward officers who were searching the house of a client of hers, an official from the opposition party of former Prime Minister Morgan Tsvangirai.
She was arrested on 17 March this year and has appeared in court on numerous occasions since then. [See below for the FUL media release dated March 17, 2013, as also the Zimbabwe Lawyers for Human Rights statement dated March 26, 2013.]
According to the Zimbabwe Human Rights Bulletin and other sources, the magistrate concluded that Ms Mtetwa had done nothing to interfere with the investigations the police were conducting. She found the police evidence contradictory and insufficient to put Ms Mtetwa on her defence. An inspection in loco cast further doubt on the State case.
The magistrate also declared that photographing the scene would not have constituted the offence charged and that, in any event, forensic examination of Ms Mtetwa’s phone produced no evidence that photographs of the scene had been taken. The magistrate found there was no evidence that Ms Mtetwa had stopped or interfered with the search the police were conducting, and acquitted her at the end of the State case.
Freedom Under Law applauds a courageous judicial decision.
Update: Mdluli and Hlophe matters
October 23, 2013
Two cases in which FUL has an interest, one relating to General Mdluli and the other to Judge President Hlophe, will shortly be before the courts again.
The Mdluli matter
Tomorrow (Thursday 24 October) Judge Murphy will hear applications in the North Gauteng High Court for leave to appeal against the judgment he granted a month ago in favour of FUL. Although FUL is satisfied that the judgment is correct and is confident that it will be upheld on appeal, it is not opposing these applications. As its attorneys have indicated to their opposite numbers, FUL believes that the legal and factual issues involved are of such importance that they warrant the attention of a higher court. At the same time, however, FUL will be asking the judge to extend or reinstate the interdict barring General Mdluli’s involvement in police work pending the final determination of the case.
The Hlophe matter
The ongoing saga involving Hlophe JP has taken yet another unforeseen turn. It appears from papers filed in the high court in a review application on behalf of Justices Nkabinde and Jafta that, contrary to popular belief when the enquiry was adjourned earlier this month, the justices do not object to giving evidence relating to Judge Hlophe’s vexed communications to them five-and-a-half years ago. On the contrary, while adhering to what they have said throughout, they are objecting to the procedure adopted by the Judicial Service Commission in pursuing the matter. This procedure, the justices believe, involves questions of principle that ought to be determined before the enquiry into Judge Hlophe’s conduct proceeds. In view of its long-standing interest in the matter, FUL will be watching the proceedings closely.
Judge Hlophe disciplinary hearing
October 3, 2013
On Monday this week a disciplinary tribunal appointed by the Judicial Service Commission commenced a scheduled fortnight of hearings into a complaint laid by the justices of the Constitutional Court against Western Cape Judge President Hlophe (see September 22 post below). Although FUL itself is not formally a party to the proceedings, they are a direct result of FUL’s efforts over a period of several years to ensure that the complaint is properly investigated.
The proceedings have been held up by technical manoeuvres aimed at blocking the enquiry. This morning, however, the tribunal rejected the objections and postponed the hearings until next Tuesday. FUL is delighted that at last there is to be a proper enquiry into what really happened between Judge Hlophe and the two justices five-and-a-half years ago.
Judgment in the Mdluli case
September 23, 2013
Today Judge Murphy delivered judgment in the North Gauteng High Court in the case brought by Freedom Under Law last year against the National Prosecuting Authority and others for the reinstatement of serious charges against Police Crime Intelligence head General Mdluli. The judgment, in substance upholding each and every submission advanced on behalf of FUL, granted the orders FUL had asked for and made condemnatory findings against the officials who had blocked the prosecution of the criminal and disciplinary charges against General Mdluli. The full judgment can be accessed on this website at Downloads>Documents.
Gen Mdluli judgment expected; Hlophe JP hearing to start
September 22, 2013
By coincidence two important cases initiated by FUL are likely to attract public attention this week. Although the cases are wholly unrelated, one involving a senior police officer and the other a senior judge, there are a number of significant common features.
The Mdluli case
In the first case Judge Murphy is due to deliver judgment tomorrow (Monday September 23) in the North Gauteng High Court in the review application brought by FUL some 18 months ago to block the reinstatement of General Mdluli as head of SAPS Crime Intelligence until two sets of serious charges against him had been properly ventilated. The first set involves a number of allegations of police thuggery, including murder, committed at a time when General Mdluli had still been stationed at a township police station. The other charges involve his allegedly corrupt use of secret police funds as head of Crime Intelligence.
When both the criminal and the disciplinary charges were withdrawn without any explanation – and contrary to the advice of the police colonels and seasoned prosecutors who had worked up the cases and obtained warrants of arrest – FUL decided that it was necessary in the public interest to try to compel the authorities concerned to reinstitute the charges so that they could be properly and transparently determined. Judge Murphy’s judgment will determine that case.
The Hlophe enquiry
The other case concerns Judge Hlophe, the Judge President of the Western Cape High Court. The case dates from the startling announcement nearly five-and-a-half years ago by the justices of the Constitutional Court that they had reported Judge Hlophe to the Judicial Service Commission (JSC) for having attempted to influence that Court’s judgment. He had approached two justices and allegedly tried to influence their thinking in two cases the Court was considering at the time relating to the envisaged prosecution of Mr Jacob Zuma on charges of corruption. The investigation by the JSC duly started and some of the justices testified but after many delays and vociferous defences and counter-charges, and also a change of the JSC’s composition once Mr Zuma had become president, the JSC ultimately closed down the case without deciding where the truth lies.
FUL was convinced it was necessary in the public interest that the extremely serious charge against Judge Hlophe (and his counter-allegations against the then chief justice and deputy chief justice) be properly and transparently aired. Next week, after many battles in several courts and many delays on the part of the JSC and Judge Hlophe, his conduct is eventually to be considered by a disciplinary tribunal appointed by the JSC. Although the case against Judge Hlophe would long since have been laid to rest were it not for the efforts and determination of FUL, FUL is not a party to the proceedings. The tribunal has ruled that the hearing, due to commence in Johannesburg on Monday September 30, will be open to the public and FUL will be represented, albeit as an interested bystander.
There are a number of curiously similar features of these apparently unconnected cases.
• The most obvious and disturbing common feature is that both involve ostensible cover-ups of extremely serious allegations against persons occupying crucial positions of great discretionary power.
• In each case there has been a vociferous counter-attack alleging a conspiracy designed to destroy the credibility of the individual concerned for devious ulterior political ends, coupled with an apparent strategy of delay.
• In each case the decision to close down the enquiry was taken for undisclosed reasons.
• In each case the decision was taken in the face of vigorous and informed opposition.
• Then when the decisions were challenged by FUL, in each case there was concerted and sustained opposition to having the charges aired.
Mdluli case finally back in courtSeptember 9, 2013
On Wednesday this week (11 September) the High Court in Pretoria is due to hear an important case that was launched urgently by Freedom Under Law (FUL) in May last year against the National Director of Public Prosecutions (NDPP) and five other public officials. The case challenges decisions by the acting heads of the NDPP and its Specialised Commercial Crimes Unit (SCCU) and by the National Police Commissioner withdrawing serious criminal charges and disciplinary proceedings against General Richard Mdluli, at the time the head of National Crime Intelligence of the SAPS. In June last year Judge Makgoba granted FUL an urgent interim order blocking the Commissioner from assigning any functions or duties to General Mdluli until FUL’s main application to set aside the decisions had been determined. The judge observed that the sooner the saga was brought to an end, the sooner the credibility of the police service and the justice system could be restored.
That saga is what FUL intends pursuing on Wednesday this week (11 September). It believes the case is extremely important, not only because it relates to the fitness of a controversial senior police officer to occupy a position of vital importance (and great power and influence) at the very heart of the nation’s security system. More importantly, FUL contends, the case touches on crucial aspects of the rule of law, the role and duties of the NDPP and the Commissioner, and the demands of the Constitution for accountable, transparent, reasoned and rational exercise of their powers. In particular FUL challenges as irrational and unconstitutional the relevant decisions taken by the acting head of the SCCU, Advocate Lawrence Mrwebi (backed by the acting head of the NDPP, Advocate Nomgcobo Jiba). These unilateral decisions flew in the face of the unanimous, considered and expert opinion of the senior investigators and prosecutors who were steeped in the cases against General Mdluli.
Only the NPA, the SCCU and the Commissioner are actively opposing FUL’s case, largely on technical/legal grounds. They challenge FUL’s standing to bring the case, challenge as hearsay the admissibility of many of FUL’s allegations (based on information derived from public sources), and on constitutional and labour law grounds deny the Court’s power to order reinstatement of the charges. None of them has complied properly with their legal obligation to file the full record of their deliberations leading to the disputed decisions; they have consistently failed to comply with the timetable prescribed by the court rules and by the deputy judge-president and the NDPP and the SCCU filed their argument only today. None of the respondents has dealt squarely with the substantive contentions advanced by FUL, and such defences as they have put up, FUL maintains, demonstrate their fundamental misconception of what is in issue here. Click here to access FUL's replying affidavit
This week at the JSCApril 13, 2013
Everyone concerned about the Rule of Law in Southern Africa must have noted with mounting dismay this week’s news and media comment on the Judicial Service Commission’s latest deliberations. The JSC is an important public body created by the Constitution to protect and promote the Rule of Law by ensuring the independence and effectiveness of the judiciary. It is a pity that instead of being protected, the dignity and standing of the judiciary are being damaged by the criticism and contention aroused by the JSC’s behaviour this week. The fact that a representative of the General Council of the Bar of South Africa found it impossible to continue serving on the JSC increases the alarm.
Freedom Under Law has in the past been compelled to challenge the constitutionality of decisions and conduct of the JSC through the courts – ultimately successfully. Unfortunately this latest sequence of egregious events may well oblige FUL to challenge the JSC yet again. It is always regrettable when the image of a public body that ought to enjoy the undivided support of the country is brought into question; but when the alternative is continued impairment of the Rule of Law, the choice is clear.
It follows that if nobody else takes action, the board of Freedom Under Law will have to consider whether it is once more to institute appropriate proceedings to have the propriety and legitimacy of the JSC’s current course of conduct tested in court.
Zimbabwe Lawyers for Human Rights statement on release of Beatrice MtetwaMarch 26, 2013
High Court Judge Justice Joseph Musakwa on Monday 25 March 2013 put the brakes on the malicious persecution of Zimbabwe Lawyers for Human Rights board member, Beatrice Mtetwa, after he set aside the dismissal of the top human rights lawyer’s bail application by Harare Provincial Magistrate Marehwanazvo Gofa and upheld an appeal filed by her lawyers.
Justice Musakwa agreed with Mtetwa’s lawyers that Magistrate Gofa had erred and misdirected herself when she denied the human rights lawyer bail on 20 March 2013.
Magistrate Gofa based her dismissal of the bail application on the basis that if released on bail, Mtetwa would interfere with police investigations which were reportedly in their “infancy” as well as cause “commotion” as she had purportedly done when she was arrested on Sunday 17 March 2013. The Magistrate ruled that the said commotion would hinder the police from carrying out their investigations.
But Justice Musakwa said Mtetwa should not have been denied bail by the magistrates, that the police should have shed light on the nature and scope of the investigations that remained outstanding, and that the magistrates' court should not have denied liberty to a legal practitioner of repute like Mtetwa.
Justice Musakwa ordered Mtetwa, who until Monday had endured eight nights in both police and prison detention, to pay bail of $500 and not to interfere with investigations until the matter is resolved.
With regard to Mtetwa’s conduct, Justice Musakwa said although he would describe Mtetwa as of a forceful if not combative personality, she still remained professional in the execution of her professional duties.
On State allegations that Mtetwa’s shouting at the police could have caused or resulted in the disappearance of some computers that the police wanted to recover, Justice Musakwa said being a woman, Mtetwa could and should have been subdued by the police officers.
Upon her release from prison bondage, Mtetwa told journalists that her arrest and prosecution was aimed at instilling fear among human rights lawyers in Zimbabwe.
“It’s an attack on all human rights lawyers. I was just used as an example,” said Mtetwa.
Mtetwa was arrested on Sunday 17 March 2013 and charged with contravening section 184(1)(g) of the Criminal Law (Codification and Reform) Act for allegedly defeating or obstructing the course of justice. She returns to Rotten Row Magistrates Court on 3 April 2013 for routine remand.
FUL welcomes African Commission’s ruling in favour of Gabriel Shumba, reiterates concern for safety of Beatrice MtetwaMarch 24, 2013
Freedom Under Law (FUL) welcomes the recently released decision of the African Commission in the torture case brought against the government of Zimbabwe by Advocate Gabriel Shumba. Mr Shumba, at the time acting as a lawyer for his clients, was arrested by the Zimbabwean authorities in 2003 and took his case to the African Commission the following year. The Commission has not only found that he was in fact severely tortured but has recommended that the Zimbabwean government pay compensation to Mr Shumba and open an official investigation to bring those responsible to justice.
While welcoming this ground-breaking ruling of the most important human rights body in Africa, FUL reiterates its concern for the safety of its Board member Beatrice Mtetwa, at present in custody in Harare’s Chikurubi Prison. Ms Mtetwa, like Mr Shumba a Zimbabwean human-rights lawyer who was interceding on behalf of clients, was arrested a week ago, on Sunday 17 March. Despite a High Court order the authorities refused to release her and later a magistrate denied bail. She has been remanded in custody for trial on 3 April on a charge of obstructing the course of justice. This Monday, 25 March, Ms Mtetwa will appeal in the Harare High Court against the refusal of bail. FUL intends to be represented at this hearing by an observer and will likewise take an interest in the trial, should it eventuate.