Richard Mdluli

In September 2020, Richard Mdluli, former head of Crime Intelligence in the SAPS, was sentenced in the High Court, Johannesburg to an effective five years imprisonment for counts of kidnapping, assault with intent to cause grevious bodily harm, assault and intimidation.

His conviction and sentencing follow a series of legal challenges over several years by Freedom Under Law to decisions which would have given Mdluli impunity and kept him in his crucial post.

The charges against him  (with other charges of fraud and corruption) had initially been withdrawn by senior prosecutors in the NPA, Nomgcobo Jiba and Andrew Chauke. In 2012 Judge Makgoba granted Freedom Under Law an urgent order directing that Mdluli stand down from his position pending the determination of a review of that decision.

In doing so, the Court stressed that a constitutional democracy could not tolerate a situation in which one of the country’s key crimefighters continued to perform his daily functions while himself facing serious allegations of criminality. That Mdluli had not been finally convicted of these grave crimes was not the issue.

In due course Freedom Under Law’s review of the prosecutors’ decision to withdraw charges too was upheld.

Mdluli’s trial ensued, and has extended over a lengthy period, culminating the September 2020 sentencing by Justice Mokgoatlheng.

In November 2020, Mdluli will appear in the Pretoria High Court to finally face charges of fraud and corruption relating to the Crime Intelligence slush fund.

His sentencing for offences relating to the kidnapping and assault of Oupa Ramogibe in 1999  is an important vindication of the rule of law in that one of South Africa’s most senior police officers has finally been held accountable for some of the crimes he has committed.

It is a cause for reflection that had Freedom Under Law, one of a group of civil society watchdogs active in this way, not challenged the decisions to withdraw charges and to keep former Mdluli at his desk, his impunity would have been assured.

For recent reports on the Mdluli matter, see here and here.

Review of the Appointment of General Mthandazo Ntlemeza as Head of the Hawks

FUL together with the Helen Suzman Foundation brought an application to set aside the appointment of General Ntlemeza as the new head of the Hawks. Extremely serious findings of dishonesty had been made against Ntlemeza by the Pretoria and KwaZulu Natal High Courts. It is critical that the person appointed to head the country’s most elite crime-fighting unit, tasked with overseeing efforts to combat corruption and other specialised crime, be an individual of the highest integrity. Without such assurance, there is risk that the institution be compromised and corrupted. In court, FUL and HSF maintained that Ntlemeza’s appointment was irrational in that proper consideration had not been given to the court findings relating to his honesty in the appointment process. The application was heard by a full bench in the North Gauteng High Court on 6 December 2016.

In March 2017, judgement was given, ordering that Ntlemeza’s appointment was unlawful. Ntlemeza sought leave to appeal the decision before the North Gauteng High Court and HSF and FUL made a counter-application seeking immediate execution of the order. Ntlemeza’s application was denied whereas the application for immediate enforcement was granted. Ntlemeza subsequently sought to appeal the immediate enforcement order which was dismissed by the SCA. He was also denied leave to appeal the judgement relating to the unlawfulness of his appointment.

Thereafter, Ntlemeza sought leave to appeal to the Constitutional Court. In December 2017, his application was dismissed by the Constitutional Court.

Read here about subsequent testimony emerging from the Zondo Commission, implicating Ntlemeza in interfering with Hawks’ investigations.

Review of Withdrawal of Charges against Former NDPP Nomgcobo Jiba

Following the appointment of Shaun Abrahams to the post of NDPP, Abrahams announced his withdrawal of perjury and fraud charges against Nomgcobo Jiba, a fomer acting NDPP, and her appointment as the head of an expanded National Prosecutions Services. Several court findings have been made against Jiba and Lawrence Mrwebi, special director of public prosecutions, impugning their integrity and professional conduct, including by the Supreme Court of Appeal in the case brought by FUL against Richard Mdluli.

FUL brought an urgent application seeking the suspension of Jiba and Mrwebi pending an application to review and set aside the decision to withdraw charges. Although FUL did not succeed in its urgent application, the judge noted that the issue was of paramount public importance. In the interim, the General Council of the Bar succeeded in its application to have Jiba struck from the roll of advocates.

On the 21 December 2017, the Court handed down judgment on the merits, reviewing and setting aside the decision to withdraw charges against Jiba; setting aside the decision of the President not to institute an enquiry into Jiba and Mrwebi’s fitness to hold office; ordering the institution of such an enquiry and suspending Jiba and Mrwebi from office pending the enquiry’s outcome (although the implementation of this order was suspended pending finalisation of the appeal in the GCB matter to have them struck from the roll). Jiba and Mrwebi were also prohibited, pending finalisation of the appeal in the GCB matter, from performing any function within the NPA, presenting themselves at its offices or engaging in any discussion concerning NPA cases.

This case, together with the Nxasana judgement, paves the way for a revitalised NPA — holding out the prospect of a new head of integrity and conscientiousness and rid of those actors who have made it so vulnerable to political interference.

Read Mandy Wiener’s column on the ‘clean up’ of the NPA here.

Review of the Settlement Given Former NDPP Mxolisi Nxasana

FUL together with Corruption Watch sought review of the settlement granted former National Director of Public Prosecutions, Mxolisi Nxasana. The two organisations also sought a declarator that the termination of Mr Nxasana’s appointment was unconstitutional and should be set aside; that the subsequent appointment of Mr Abrahams was invalid and was to be set aside; and that the President, owing to conflict, may not appoint, remove or suspend an NDPP but that the Deputy President is to do so.

In a hard-hitting judgement on the 8 December 2017, the North Gauteng High Court granted the relief sought by the applicants although declined to order the reinstatement of Mr Nxasana. The judgment is of critical importance to the independence of the National Prosecuting Authority clearly underlining that persons at its head must be of unimpeachable integrity and there can be no suggestion that political interference enters into their removal or appointment.

The President and the Abrahams have both launched applications for leave to appeal the judgement and the applicants are seeking confirmation of certain parts of the order before the Constitutional Court.

Click here for a media summary of the subsequent Constitutional Court judgment, hearing the parties’ leave to appeal; and confirming the High Court’s declarations of invalidity.

FUL’s Intervention in the Social Grants Crisis

The matter concerns the operation of a contract for the payment of social grants. A third of the country’s citizens are recipients of these grants. In 2012, SASSA contracted with Cash Paymaster Services (Pty) Limited (CPS) to pay social grants on its behalf. That contract was subsequently declared invalid by the Constitutional Court and the order of invalidity suspended so as not to disturb the distribution of grants. Despite assurances provided by SASSA that it intended to take over the payment function of social grants itself, it became apparent as the contract’s expiry date approached that SASSA would instead look to enter into a new contract with CPS.

The Black Sash brought its application to the Constitutional Court, seeking reinstatement of the Court’s supervisory role and certain protections for grant beneficiaries. FUL intervened as second applicant, seeking relief to further discipline the proposed contractual arrangement between CPS and SASSA. The matter had clear implications for the rule of law and the obligations of a constitutional democracy. A ruling of the highest court of the land, carefully structured so as to best protect the rights and interests of the most vulnerable in our country, had been cynically disregarded. Instead the security of those dependent on social grants had been recklessly imperilled in a bid to ensure the interim contracting process escaped scrutiny and oversight.

The Court granted relief in line with the applicants request: the contract was extended for a period of 12 months, sufficient only to allow that a lawful competitive bidding process be put in place and that SASSA capacitate itself so that it can take over the grant payment system. The contract was also extended on the basis of the no-benefit principle requested by FUL i.e. the same terms and conditions as the original agreement. The Court also reassumed its supervisory function and called on the Minister of Social Development to show cause why she should not be liable for the costs of the application in her personal capacity.

Following the Constitutional Court’s judgement, FUL made submissions to the court regarding the appointment of experts to monitor the extension of the contract. In response to parties’ submissions, including FUL’s, relating to the Minister’s personal liability, the Constitutional Court has ordered an inquiry in terms of s 38 of the Superior Courts Act.

Experts, among them several of those proposed by FUL, were appointed by the Court to monitor the transition period.Following submission of the initial expert reports pointing to the lack of appropriate expertise within SASSA and the Ministry of Social Development to oversee the transition to a new grants regime system and indicating that information required by the panel to fulfill their monitoring role has been purposefully withheld from them, FUL again engaged the Court urging it to urgently issue directions ensuring that the panel was given the cooperation and information it re- quired to discharge its monitoring function. Such directions were given.

The section 38 inquiry examining then Minister Bathabile Dlamini’s personal liability resulted in a personal costs order against her by the Constitutional Court.

The Constitutional Court also ordered rigorous auditing and verification requirements for CPS and SASSA at the contract’s conclusion. FUL came to learn that these auditing and verification re- quirements have not been fulfilled by the parties. SASSA’s auditors, Rain, were not given full ac- cess to the working papers of CPS’s auditors, KPMG and Mazars. And yet even with limited access,

Rain still estimates that CPS may have understated its profits for the duration of the contract in an amount of over R800 million.

Presented with these auditing and verification reports, Treasury has not, as it is required to do by the court, made a definitive determination of the profits.

FUL has now again approached the Constitutional Court asking for a rerun of the auditing and verification processes, this time with full access demanded so that Treasury can make an authoritative determination. Moreover, FUL maintains that the searching, rigorous auditing requirements could only have been imposed to ascertain with some degree of the certainty the true extent of those profits so that the determined amount can be ordered returned to Treasury.

This is in keeping with the no-profit principle, articulated by the court to mean that the beneficiary of an unlawful contract has no right to profit from such unlawfulness.

It is not feasible, of course, that every state awarded procurement contract, alleged to be unlawful, be subject to similar levels of scrutiny as that paid by the Constitutional Court to the CPS contract. That would consume too much of the time and resources of South Africa’s already overburdened judiciary. And, as courts would readily admit, they’re not best capacitated to provide this level of oversight routinely.

But should the Constitutional Court grant the order sought, it will stand as precedent and likely greatly enable the disgorgement of profits obtained through other unlawfully awarded contracts. It will certainly stand as strong disincentive to those who would seek to win such contracts in future.

FUL awaits judgement in this matter, which has been delayed as CPS has subsequently gone into liquidation.

The most recent media update on the CPS-SASSA matter can be found here.

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.