IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)

DATE: 6/6/2012

CASE NO: 26912/2012

FREEDOM UNDER LAW - APPLICANT

AND

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - 1ST RESPONDENT 

THE NATIONAL COMMISSIONER: SOUTH AFRICAN POLICE SERVICE - 2ND RESPONDENT 

THE HEAD: SPECIAL1SED COMMERCIAL CRIMES UNIT - 3RD RESPONDENT 

THE INSPECTOR GENERAL OF - INTELLIGENCE - 4TH RESPONDENT 

RICHARD NAGGIE MDLULI - 5TH RESPONDENT 

MINISTER OF SAFETY AND SECURITY - 6TH RESPONDENT 

JUDGMENT 

MAKGOBA, J 

Introduction

[1] The applicant, a non-profit company incorporated and registered 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, brought a two parts application against the six respondents. 

[2] In Part A of the applicant's urgent application the relief sought is an order interdicting the fifth respondent from carrying out any duties as a member of the South African Police Service ("SAPS') and interdicting the second and sixth respondents from assigning any function or duty to the fifth respondent. A costs order is also sought against those respondents who oppose the relief. 

[3] In Part B of the notice of motion the applicant seeks the following relief: 

(a) Reviewing, correcting and/or setting aside: 

(i) the decision made on 6 December 2011 by the third respondent in terms whereof the criminal charges of fraud, corruption and money laundering instituted against the fifth respondent under case number CAS 155/07/2011 were withdrawn; 

(ii) the decision made on 2 February 2012 by or on behalf of the first respondent in terms whereof the criminal charges of murder, kidnapping, intimidation and assault with intent to cause grievous bodily harm and defeating the ends of justice under case number CAS 340/02/99 were withdrawn; 

(iii) the decision made on 29 February 2012 by or on behalf of the second respondent in terms whereof the disciplinary proceedings instituted by the second respondent against the fifth respondent were withdrawn; 

(iv) the decision made on 31 March 2012 by or on behalf of the second respondent in terms whereof the fifth respondent was reinstated as the head of Crime Intelligence in the South African Police Services with effect from 31 March2012. 

(b) Directing the first and third respondents to reinstate forthwith the criminal charges which were instituted against the fifth respondent under case number CAS 155/07/2011 and case number CAS 340/02/99 and to take such steps as are necessary to ensure that criminal proceedings for the prosecution of the criminal charges under the aforesaid •cases are re-enrolled without delay. 

(c) Directing the second respondent to reinstate disciplinary charges which he had instituted against the fifth respondent but subsequently withdrew on 29February2Ol2, and to take such steps as are necessary to institute or reinstate disciplinary proceedings that are necessary for the prosecution and finalisation of the aforesaid disciplinary charges. 

(d) Directing any respondent who opposes the above relief to pay the costs thereof, jointly and severally, the one paying the other to be absolved. 

[4] The second, fifth and sixth respondents oppose the urgent interim relief. The fourth respondent abides the decision of the court. The second respondent delivered an answering affidavit in which he merely contests urgency and claim that the interim relief has become academic in the light of his decision to suspend the fifth respondent from office. Likewise, the fifth respondent (General Richard Naggie Mdluli) delivered an answering affidavit in which he contests urgency and contends further that the applicant has failed to set out any factual basis to show that it will not obtain substantial redress at the hearing in due course. 

[5] The factual allegations as well as the legal submissions made by the applicant in its founding affidavit have not been specifically dealt with and/or denied by the second and fifth respondents in their answering affidavits.

In particular the contents of the fifth respondent's answering affidavit amounts to no more than presenting a critical commentary on the factual allegations made by the applicant without specifically denying, and/or traversing the specific allegations. 

Factual Matrix 

[6] The following undisputed facts are common cause: 

6.1 With effect from 1 July 2009 the fifth respondent became the head of the Intelligence Division of SAPS. 

6.2 Criminal charges of murder, intimidation, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice were brought against the fifth respondent on 31 March 2011. 

6.3 Further criminal charges of fraud, corruption, theft and money laundering were instituted against the fifth respondent on 20 September 2011. 

6.4 These criminal charges are a product of intensive investigations by an investigative team which compiled a report and several affidavits explaining the factual bases of the charges as well as supporting evidence. 

6.5 The second respondent suspended the fifth respondent from office as the head of Crime Intelligence as a result of the serious criminal charges brought against him and instituted disciplinary proceedings against him. 

6.6 On 6 December 2011 criminal charges of fraud and related offences against the fifth respondent were withdrawn on the instructions of the third respondent. 

6.7 On 2 February 2012 the criminal charges of murder and related offences against the fifth respondent were withdrawn by the first respondent or officials acting under her authority. 

6.8 After the withdrawal of the criminal charges against the fifth respondent, disciplinary charges against him were similarly withdrawn and the disciplinary proceedings immediately terminated. In consequence the fifth respondent was reinstated and resumed office as the head of Crime intelligence. He did so with effect from 31 March2012. 

6.9 As a result of serious allegations of conspiracy that the fifth respondent made against other senior members of SAPS, the sixth respondent announced in Parliament that the fifth respondent would be redeployed from his post as the head of Crime Intelligence to a post to be identified by the second respondent, pending investigation into those allegations by a ministerial task team. 

6.10 On 15 May 2012 the second respondent served a notice on the fifth respondent to show cause why he should not be suspended from SAPS.

6.11 On 22 May 2012 the second respondent's attorneys informed the applicant's attorneys that disciplinary proceedings against the fifth respondent have been instituted.

6.12 On 28 May 2012 the second respondent's attorneys informed the applicant's attorneys that the second respondent had suspended the fifth respondent from office, pending the finalization of disciplinary proceedings against him.

6.13 The fifth respondent's aforesaid suspension was uplifted by an order of the Labour Court on Friday, 1 June 2012. On Sunday, 3 June 2012 the same court set aside the order of 1 June 2012. To date hereof the fifth respondent remains on suspension.

[7] The second and fifth respondents contend that the relief sought in Part A of the notice of motion has become academic in the light of the decision to suspend the fifth respondent for the second time. They now oppose the relief on that ground and also claim that there is no urgency to entertain that relief. 

Urgency 

[8] On the issue of urgency counsel for the applicant made a submission that the issue must be considered in the context of the provisions of section 237 of the Republic of South Africa Constitution Act 108 of 1996 which make it clear that functions and duties imposed on public functionaries must be fulfilled "diligently, and without delay". The obligation to act with diligence and promptitude is always enforceable not only where a public official has failed or refused to fulfil a constitutional duty and is sought to be compelled to do so by way of madamus but also where there is a need to "cure" any constitutionality. In this regard counsel referred me to the cases of MEC, Department of Welfare Eastern Cape v Kate 2006 4 SA 478 (SCA), [30] to [33] and S v Steyn 2011 1 SA 1146 (CC) [45]. Upon perusal of these authorities I am inclined to agree with counsel. 

[9] It must be borne in mind that the foundation of the interim relief sought by the applicant in this matter is the enforcement of the provisions of section 205(3) of the Constitution which require SAPS and its members to prevent, combat and investigate crime, to maintain public order, protect and secure the inhabitants of the Republic and uphold and enforce the law. 

The applicant has made it clear in its founding affidavit and its version has not been denied by any of the respondents that serious allegations of criminal conduct levelled against the fifth respondent affect the very foundation of the constitutional duties required of SAPS and the fifth respondent. The SAPS has a duty to act decisively and promptly against any of its members against whom allegations of criminal conduct have been levelled. 

[10] The allegations against the fifth respondent are no ordinary allegations of misconduct. Murder, defeating the ends of justice, fraud and money laundering are serious criminal acts which go to the fabric of public order and security. While these allegations remain unresolved the fifth respondent's very presence in the senior echelons of SAPS will necessarily, erode the function he and SAPS as a whole are entrusted. Hence such allegations need to be attended to diligently and promptly.

[11] In my view, this matter is of considerable public importance. The sooner this saga is brought to an end the sooner the credibility of the police, security service and the justice system as a whole can be restored. 

I cannot loose sight of the serious nature of the allegations against the fifth respondent and the public interest that has been displayed in the proceedings that were initiated by the applicant. These are canvassed in the founding affidavit in this application and have not been seriously contested. It is in the interest of all the parties to the dispute and in the national interest that finality is reached in respect of the primary dispute between the parties as soon as possible. For these reasons, I am satisfied that the application is urgent and I intend to deal with it on that basis. 

The Relief Sought 

[12] The relief sought by the applicant is that pending the review application in Part B of the notice of motion the fifth respondent be interdicted from discharging any function or duty as a member of SAPS and that the second and sixth respondents be interdicted from assigning any function or duty to him. 

[13] The respondents have presented an argument that since the fifth respondent has already been suspended the order sought by the applicant is academic. This argument misses the point. The applicant does not seek an order for the suspension of the fifth respondent. Instead it seeks to prevent the fifth respondent from working with a view to preserving the integrity of the investigations into allegations against him and the functioning of SAPS. 

The question of the employment status of the fifth respondent is thus not in issue in this application. 

[14] It is common cause that the fifth respondent has been suspended before, also pending disciplinary proceedings and that this suspension was lifted without the disciplinary proceedings being finalised. On what basis should the applicant believe or trust that this time around the present suspension will not be uplifted? 

It is unfortunate that there have been allegations of political interference in the process which allegations the second respondent has not disputed in his answering affidavit. In this regard the applicant argues that there is a risk that the fifth respondent's suspension may be lifted again whilst the questions raised by this application remain unresolved. This .argument is not farfetched and I am inclined to give it my full attention. 

[15] In my view the fact that the fifth respondent is under suspension cannot be a bar to the court order sought by the 

 applicant. The relief sought is aimed at addressing the outstanding investigations and criminal allegations levelled against the fifth respondent. It would be unconscionable that the fifth respondent continues with his duties with those allegations still looming. 

[16] The second respondent further contends that the order sought by the applicant contravenes the requirements of fair labour practices and is antithetical to the rule of law. The basis of such contention is that SAPS is obliged to follow the due process before suspending an employee and that the relief sought conflicts with this requirement. 

There is no merit in this argument. The applicant in this matter does not seek the suspension of the fifth respondent by SAPS, therefore this argument does not hold water. 

In any event the fifth respondent in the present proceedings has the opportunity to protect his procedural rights by being heard by this court before it makes any order against him. 

Whether Applicant is entitled to the Relief Sought 

[17] The requirements for an interim interdict are well established. The issue relating to the granting of same was dealt with by the court in Erikson Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 3 SA 685 (A), on page 691 of the judgment the court stated the following per HOLMES JA: 

"The granting of an interim interdict pending an action is an extraordinaiy remedy within the discretion of theCourt. Where the right which it is sought to protect is not clear, the Court's approach in the matter of an interiminterdict was lucidly laid down by INNES JA, in Setlogelo v Setlogelo 1914 AD 221 at p227. In general therequisites are - 

(a) a right which, ‘though prima fade established, is open to some doubt 

(b) a well grounded apprehension of irreparable injury; 

(c) the absence of ordinary remedy. 

In exercising its discretion the Court weighs, inter alia, the prejudice to the Applicant, if the interdict is withheld, against the prejudice to the Respondent if it is granted. This is sometimes called the balance of convenience." 

[18] The applicant must show a prima fade right of which it is entitled to claim protection by way of an interdict. In casu, none of the factual and legal bases on which the applicant relies for the review of the impugned decisions has been challenged by the respondents in their answering affidavits. It follows that on the merits the applicant has shown a prima fade case. The decisions sought to be reviewed in Part B of the notice of motion impact on the ability of SAPS as an organisation to carry out its objectives as set out in section 205 of the Constitution. Every South African has a right to vindicate the ability of the police service to fulfil those objectives. 

[191 The continuing public controversy and its effect on the integrity of SAPS and its ability to fulfil the constitutional mandate, coupled with the risk that the fifth respondent may at any time be permitted to resume his duties are sufficient to found a reasonable apprehension of irreparable harm.

[20] The balance of convenience favours the applicant in this case. The continued violation of the rule of law and the integrity of SAPS that would result were the fifth respondent to return to his duties before the finalisation of the review application has not been gainsaid by the respondents. Both the second and fifth respondents have not advanced any contentions of prejudice that they may suffer as a result of the relief sought in these proceedings. 

Conclusion 

[21] On the evidence before me, I come to the conclusion that the applicant's prospects of success on the review application are good. 

The applicant has made out a case for the interim relief sought in Part A of the notice of motion and thus also a strong prima fade basis for the review of the maligned decisions in its founding affidavit. 

[22] I accordingly grant the following orders: 

(a) Pending the determination of the relief sought in Part B: 

(i) the fifth respondent is interdicted from discharging any function or duty as a member and senior officer of SAPS; and 

(ii) the second respondent and the sixth respondent are interdicted from assigning any function or duty to the fifth respondent. 

(b) The second respondent and the fifth respondent are to pay the costs of the interim application, jointly and severally, the one paying the other to be absolved, including the costs of two counsel. 

Signed

EM MAKGOBA
JUDGE OF THE NORTH GAUTENG HIGH COURT 

Heard on: 5 June 2012 

For the Applicant: Adv I V Maleka SC and Adv S Yacoob 

Instructed by: Cliffe Dekker Hofmeyer Inc c/o Jasper van der Westhuizen & Bodenstein Inc 

For the 2 Respondent: Adv M Zulu

Instructed by: The State Attorney 

For the 5th Respondent: Mr I Motloung 

Date of Judgment: 6 June 2012 

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