An eleventh-hour appointment to the NPA's legal team reveals the threat posed by lobby group Freedom Under Law in the case against Richard Mdluli.
There is a sense of panic from the state in relation to the Richard Mdluli saga, which is playing out amid the neoclassical kitsch and appalling acoustics of the Palace of Justice in Pretoria this week.
Lobby group Freedom Under Law (FUL) is asking Judge John Murphy to set aside three sets of decisions to withdraw criminal charges and disciplinary proceedings against Mdluli, the suspended police crime intelligence boss.
Panic was suggested by the decision by police commissioner Riah Phiyega to order her legal team to file an application to try to lift Mdluli's effective suspension.
Since June last year, when FUL won an interim interdict, Mdluli has officially been kicking his heels at home.
But an attempt to overturn the interdict in this manner would have flown in the face of settled law and when the main case began on Wednesday, advocate William Mokhari announced without explanation that his client, Phiyega, was withdrawing the application.
Panic was also evidenced by the fact the National Prosecuting Authority (NPA) belatedly drafted in a legal heavyweight to try to rescue its case, the fourth legal team to represent the NPA in this matter.
Advocate Laurance Hodes told the court he was brought in only in mid-August, the day after the NPA's final legal submissions to court were due.
FUL's attempt to challenge pro-secution decisions and internal police-management actions initially seemed optimistic, given the deference the courts often display towards executive and prosecutorial discretion.
But the chain of events surrounding the decisions regarding Mdluli were so suggestive of politically inspired interference – and the state's reluctantly tendered explanations so tenuous and contradictory – the prospect of FUL succeeding must have begun to loom as a real threat.
- In March 2011, Mdluli was charged for the murder of love rival Oupa Ramogibe in 1999 and, two months later, he was suspended as crime intelligence chief; and
- In September 2011, Glynnis Breytenbach's Pretoria Specialised Commercial Crime Unit separately charged Mdluli for corruption relating to the alleged abuse of the secret services account. Disciplinary charges were also later initiated against Mdluli by police management.
Then came the three decisions that reversed Mdluli's misfortune:
- In December 2011, newly appointed NPA special director Lawrence Mrwebi overruled the decision to prosecute the corruption case and ordered the withdrawal of charges against Mdluli;
- On February 1 2012, Breytenbach was given a suspension notice;
- On February 2 2012, the NPA announced that murder and related charges against Mdluli would be withdrawn in favour of an inquest; and
- In March 2012, Mdluli's suspension was lifted and his disciplinary charges were abruptly withdrawn by then acting police commissioner Nhlanhla Mkhwanazi.
It is these three decisions that FUL is arguing were irrational and unlawful and should be set aside, in effect reinstating the original decision to charge Mdluli for murder, for corruption and also the police decision to charge him departmentally.
The state's growing discomfort in defending these decisions is palpable in the NPA's extraordinary efforts to find a legal team it could live with.
In an affidavit explaining its delays, the state attorney said that, on June 7 this year, the mandate of the NPA's counsel, McCaps Motimele, Viwe Notshe and Simon Phaswane, was terminated. No explanation was given for the decision.
Next came the team of advocates Terry Motau, Benny Makola and Lerato Maite, who prepared a set of draft final affidavits for approval by Mrwebi and Nomgcobo Jiba, then acting national director of public prosecutions (NDPP).
The state attorney revealed that the NPA did not agree with "certain averments" made in the draft affidavits and made changes.
Three days later, Motau and company resigned as counsel. Again, no reasons were provided.
The NPA then appointed advocates Leon Halgryn and Johan Uys to prepare final legal arguments.
On August 12, this team's memorandum was forwarded to the NPA. At 6pm the same day, the mandate of Halgryn and Uys was terminated, and the NPA finally approached Hodes.
In court this week, Hodes, the veteran who got convicted criminal Glenn Agliotti off the hook, demonstrated why he is one of the country's top criminal lawyers.
He mounted a spirited attack on the very power of the court to intervene in the NPA's processes at this stage.
He argued that there had been no attempt by FUL to approach Jiba as acting NDPP to exercise her powers under section 179 of the Constitution to review the decisions of her subordinates. Therefore, FUL and the complainants it might represent – such as Ramogibe's relatives – had not exhausted the internal remedies they had with regard to the NPA.
He argued that the court "does not have the jurisdiction to intervene at this stage".
Hodes also argued that the decision to withdraw charges was not final, it could still be reinstituted and, therefore, was not reviewable by the court.
Judge Murphy has shown every indication of engaging robustly with what he terms are popular misconceptions about the separation of powers and the proper understanding of judicial deference.
Murphy put it to Hodes that he was suggesting that, if someone bribed a prosecutor to withdraw a case provisionally and then nothing happened for 10 years, the courts were not entitled to intervene.
Hodes responded that the appropriate response was an appeal to the NDPP.
"And if she shrugs her shoulders and does nothing?" Murphy asked.
The only way out, Hodes submitted, was to demand a nolle prosequi certificate and proceed with a private prosecution.
Moreover, he argued, there was no indication in the evidence before the court that Jiba was not prepared to prosecute.
That, as a matter of fact, is not true. The case record includes the special memorandum prepared by Breytenbach and her colleague, advocate Jan Ferreira, and submitted to Jiba in April 2012 asking her to exercise her power to review and overturn the decision by Mrwebi to withdraw the corruption charges.
Breytenbach and Ferreira went so far as to indicate they would go to court should Jiba not exercise her discretion. Jiba never responded to that memorandum.
Instead, Breytenbach was suspended and removed from her cases, including the Mdluli prosecution.
The inference that FUL's evidence invites is that Jiba had already made up her mind or, in the words of Murphy, "evinced an intention or attitude".
What then? If the bona fides of the NDPP are in doubt, even slightly, can the court intervene? That is the fundamental constitutional question Murphy will have to grapple with.
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