Police have not yet proven that suspended intelligence boss Richard Mdluli was not reinstated on the instructions of higher authorities.
Lawyers representing the South African Police Service have still not provided proof to the North Gauteng High Court that the former acting national commissioner of police, Lieutenant General Nhlanhla Mkhwanazi, was not under pressure "from above" when he reinstated suspended crime intelligence boss Richard Mdluli in March last year.
At the time, disciplinary charges against Mdluli were withdrawn and he was reinstated as crime intelligence boss. This is one of the decisions that lobby group Freedom Under Law wants the court to review and have set aside.
Mkhwanazi told Parliament's portfolio committee on police that he had initially withdrawn charges against Mdluli because he was acting on instructions from authorities "beyond" him.
Freedom Under Law argued this week that the decision to withdraw the charges was therefore unlawful and should be overturned by the court.
In responding papers, police commissioner General Riay Phiyega told the court that she had consulted with Mkhwanazi in order to clarify what he meant by these remarks.
'Quoted out of context'
She said Mkhwanazi was "quoted out of context".
"As I understood and this is what he later clarified was that his response was in relation to the issue of the withdrawal of changes, which fails within the domain of the National Prosecuting Authority [NPA], which invariably in his view affected the purpose of the continued suspension and disciplinary charges then.
"General Mkhwanazi never obtained instructions from above," Phiyega said.
She promised to provide the court with the transcripts of the portfolio committee's proceedings as well as a confirmatory affidavit from Mkhwanazi, confirming what he had apparently told Phiyega.
But by Thursday, three months after Phiyega's affidavit was filed, the transcript and affidavit had still not been filed.
On Thursday, advocate William Mokhari SC, acting for the police, said this was merely an “oversight” on the part of the police and that the police stood by its version, that Mdluli was not reinstated because of the instructions of higher authorities.
Judge John Murphy said the allegation that the dropping of the charges of Mdluli came from above was "very serious".
"Whether I like it or not I have to make a finding about whether or not Mkhwanazi was acting under instructions from above. You say that you have evidence to affirm [your position], but then you don't produce that."
Murphy said in the absence of proof from the police, it would mean the police conceded that Mkhwanazi was under pressure to drop the charges against Mdluli, which would render that decision "illegal".
Affidavit and transcripts
But Mokhari insisted the police could prove otherwise and that the affidavit and transcripts would be produced.
Murphy retorted, "You are misunderstanding the fundamental point here. This court has to make a factual finding. When you simply deny something and say you have evidence which you don't produce, then the court is obliged to deny the evidence … It's an untenable denial.
"This is central to the whole question of reviewing."
He said the police would have to bring a separate application to provide the affidavit and transcripts if this was not done by the close of business on Thursday.
The case was set down for two days this week.
Freedom Under Law told the court it suspected that the affidavit and transcripts had not been filed because, "presumably", Mkhwanazi disagreed with Phiyega's statement.
Mdluli was charged with murder in March 2011. In September that year, fraud and corruption charges were brought against him, separately.
Withdrawal of charges
Mkhwanazi suspended Mdluli soon afterwards and instituted disciplinary action against him.
But in December that year, the head of the Specialised Commercial Crimes Unit, advocate Lawrence Mrwebi withdrew the fraud and corruption charges pending against Mdluli. In Feburary 2012, the murder charges were also withdrawn, allegedly by advocate Andrew Chauke, a director of public prosecutions within the NPA.
With the criminal charges out of the way, Mkhwanazi withdrew the disciplinary charges and Mdluli was reinstated. But the suspended crime intelligence boss was moved to another position within the police in May 2012, while a ministerial task team investigated claims made by Mdluli that the charges against him were part of a political conspiracy.
The team found there was no conspiracy against Mdluli, and those who brought the charges against him had done so in good faith.
In June 2012, Freedom Under Law obtained a court interdict preventing Mdluli from carrying out his duties as a member of the police pending this week's court review. Freedom Under Law wants the decisions to drop the criminal charges and withdraw the disciplinary proceedings against Mdluli reviewed and set aside.
The national director of public prosecutions and the police opposed the application. Mokhari said the allegations against Mdluli were "hearsay" and that the high court did not have jurisdiction to review the decision, as it was a matter that only the Labour Court could hear.