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Mdluli: A complex fight for simple transparency

Phillip De Wet

The case against Richard Mdluli, although intricate, comes down to one question - can citizens demand transparency of those who protect them?

Former crime intelligence head Richard Mdluli. (Gallo)

The South Gauteng High Court will hear a tangled mess of arguments on the status of on-again-off-again crime intelligence boss Richard Mdluli this week – but at heart, the matter is as simple as it is important.

There will be a choice selection of irrelevancies in a hearing, scheduled for Wednesday and Thursday, on whether the courts should continue to keep Richard Mdluli from returning to his desk – or whether he should have been judicially suspended in the first place.

The now notorious, oft-suspended head of police crime intelligence will this week see those supporting his return to work, including the National Prosecuting Authority (NPA) and the police itself, face off against civil society gadfly Freedom Under Law.

The organisation last year won a battle to keep Mdluli from returning to his job in the face of a raft of serious allegations against him, but has yet to win the war to bar him from the post permanently.

The hearing into the matter, if it goes ahead as planned, may prominently feature the name Mamphela Ramphele, who is a member of the "international advisory board" for Freedom Under Law, and who is named in its court papers. There are several parties that would like to insinuate that Ramphele's involvement is linked to her newfound political ambitions in an election year, and that the whole matter is therefore a political sideshow.

The name Glynnis Breytenbach will also likely come up. The one-time star of the NPA has consistently held that she was suspended because she wanted to see Mdluli prosecuted on charges of corruption.

A labour matter
The police, in the person of national commissioner Riah Phiyega, will argue that how she deals with the still unresolved allegations that Mdluli is guilty of kidnapping, intimidation and other crimes is up to her; a labour matter in which no civil society group should have a say.

There will be the link with President Jacob Zuma and the corruption allegations against him, both in the similarity in the way charges against Zuma and Mdluli were dropped and on the relationship between the two men.

There will be much said about the need for secrecy in how an intelligence operation is managed, the need for prosecutors to have the freedom to decide which cases are worth bringing before the courts, and to what extent such decisions should be open to review. There will also be much use of the phrase "hearsay evidence" to describe the charges Mdluli has never actually faced.

But for all the drama, political implications and legal technicalities, Freedom Under Law will be asking the court quite a simple question: should citizens have the right to demand transparency when it comes to the people with the ability to tap their phones, track their movements, and guard them against the likes of transnational syndicates, organised drug cartels and paramilitary robbery groups?

If the answer is yes, Freedom Under Law will hold, then the police and the NPA have a duty to disclose details of investigations into Mdluli, disciplinary action against him, the basis for the decision not to pursue charges against him, and to generally take the country into their confidence.


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