Suspended crime intelligence head Richard Mdluli believes he "faces the real prospect of his right to sue" the prosecuting authorities or others for possible malicious prosecution if he is prosecuted and acquitted.
Mdluli, the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) have filed applications for leave to appeal the landmark judgment by Judge John Murphy, which last month ordered the reinstatement of criminal and disciplinary charges against him.
The matter will be heard by Murphy on Thursday in the high court in Pretoria.
In his application filed in court, Mdluli said that if he chose to sue, the prosecution would be entitled to plead in defence that the decision was not its own, but as decreed by the court or judge.
Mdluli would have no claim against the judge or court in law, which would be of "irreparable prejudice" to him, he stated in his application.
As this judicial review is a first in South Africa's law, to the knowledge of Mduli and his attorneys, he said he believes the Supreme Court of Appeal should consider the matter.
"The matters deserves the attention of the Supreme Court of Appeal in order to settle the law regarding not only judicial reviewability of decisions to withdraw charges [as possibly distinct from decisions to discontinue prosecution], but also the extent or circumstances under which such review [if applicable] is permissible," reads the application.
Mdluli stated in his application he intends to appeal the whole judgment and orders made against him by Murphy. The grounds of appeal were based on "procedural irregularities", he stated.
Controversial decisions
Murphy's judgment came after the civil society organisation, Freedom under Law, took a number of controversial decisions taken by police officials around Mdluli for review by the court. In his judgment, Murphy ordered that:
- The December 2011 decision by Lawrence Mrwebi, head of the NPA's Specialised Commercial Crimes Unit, to withdraw the corruption and related criminal charges against Mdluli was reviewed and set aside;
- The decision taken in February 2012 by Advocate Andrew Chauke, director of public prosecutions for south Gauteng, to withdraw the murder and related charges against Mdluli was reviewed and set aside. These charges related to the 1999 murder of Oupa Ramokgibe;
- The decision by the acting police commissioner Lieutenant General Nhlanhla Mkhwanazi in February 2012 to withdraw the disciplinary proceedings against Mdluli was reviewed and set aside;
- The decision in March 2012 to reinstate Mdluli as the head of crime intelligence within the South African Police Service was also reviewed and set aside;
- The criminal charges and disciplinary charges against Mdluli be reinstated.
Murphy hit out at the various officials involved in the decisions in his judgment. By withdrawing the disciplinary proceedings against Mdluli and allowing him to resume his senior position in the SAPS when there were "serious and unresolved allegations of misconduct against him which called into question his integrity", Murphy said Mkhwanazi had frustrated the proper function of the SAPS Act and the discipline regulations.
Mrwebi came in for criticism too, as Murphy found it was clear Mrwebi took the decision to withdraw the fraud and corruption charges without first securing the consent of the director of public prosecutions for North Gauteng, which is a jurisdictional prerequisite under the NPA Act. "His decision was unlawful for want of jurisdiction and must be set aside for that reason alone, in accordance with the principle of legality," Murphy found.
The beginning of Mdluli saga
The Mdluli saga began in early 2011, when the crime intelligence head was arrested and charged with various crimes including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
The directorate for priority crime, better known as the Hawks, has not halted its investigation into Mdluli, despite claims he is a close ally of President Jacob Zuma, and is therefore protected.
In September 2011, Mdluli was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This time, he was accused of allegedly looting the police secret service account for his personal benefit and that of his spouse.
Conflict between the country's two top specialist police crime-fighting units, crime intelligence and the Hawks, has escalated as the Hawks has continued to investigate Mdluli. Last month, the Hawks laid a criminal charge against Mrwebi for defeating the ends of justice by dropping criminal charges against Mdluli.
Also under siege has been NPA prosecutor advocate Glynnis Breytenbach, who maintains she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Spotlight on Mduli
Thursday's hearings of the applications for leave to appeal the Murphy judgment will again focus the spotlight on Mdluli.
Freedom Under Law said it would not oppose the applications for leave to appeal the judgment.
"Although Freedom Under Law is satisfied that the judgment is correct and is confident that it will be upheld on appeal, it is not opposing these applications. As its attorneys have indicated to their opposite numbers, Freedom Under Law believes that the legal and factual issues involved are of such importance that they warrant the attention of a higher court," Freedom Under Law stated on its website.
"At the same time, however, Freedom Under Law will be asking the judge to extend or reinstate the interdict barring General Mdluli's involvement in police work pending the final determination of the case."