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:
A. Introduction
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.
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 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 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 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 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.
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 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 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.
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 inDemocratic 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.
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.
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 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.
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.
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.
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.
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.
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 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 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.
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.
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.
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 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.
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 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 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 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: ‘Who 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.
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.
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 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 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.
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 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 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 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;
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, 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.
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.
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 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 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.
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 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 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.
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.
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, 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.
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-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 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.
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.
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 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 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 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 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.
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.
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.
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 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.
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:
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
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".
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.
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.
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.
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.
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.
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.
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;
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 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.
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.
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 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 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
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.
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.
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.
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.
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.
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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.
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COMMISSIONER OF OATHS
Footnotes:
[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).
[3] Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others2011 (3) SA 549 (SCA).
Source: Freedom Under Law, May 15 2012
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