After a dramatic showdown between two top legal figures in the Pretoria high court, the heated question of whether crime intelligence boss Richard Mdluli will return to his post while court processes take place is again on the table.
National police commissioner Riah Phiyega has been put on the spot by the deputy judge president of the Pretoria high court, Judge Aubrey Ledwaba, who has asked for clarity on the contentious issue.
During the court wrangle last month, Judge John Murphy asked William Mokhari SC, counsel for Phiyega, whether the commissioner wanted Mdluli to go back to work and he responded: "That is presumptuous and I will not respond to the question."
This response prompted Murphy to say: "How dare you say that to me, Mr Mokhari You are obliged to respond to me."
Mokhari later laid a complaint against Murphy with the judicial conduct committee.
Ledwaba has now intervened and in a letter to the legal teams he said he aimed to let the court finalise two matters before the end of this term. These involved the application for leave to appeal the judgment by Murphy ordering the reinstatement of criminal charges against Mdluli, and the issue of the attempted resuscitation of an interim order passed by Judge Ephraim Makgobo last year.
The Makgobo order restrained Police Minister Nathi Mthethwa and Phiyega from assigning any duties to Mdluli pending a review of decisions taken by the National Prosecuting Authority (NPA) to drop criminal charges and ordering the police to reinstate and finalise disciplinary proceedings against him.
The saga surrounding Mdluli began after he was arrested and charged with various crimes, including murder and fraud and corruption in 2011, but these charges were later withdrawn by the NPA. The Directorate for Priority Crime Investigation, the Hawks, has not halted its investigation of Mdluli, despite claims he is a close ally of President Jacob Zuma and is therefore protected.
Ledwaba said in his letter that, following a meeting of the legal teams last week, it had become clear to him that it is important to know the instructions of Mdluli and Phiyega.
"I am very much aware of attorney-client privilege, whether the general intends commencing his functions or duties as a member and senior officer of the South African Police Service (SAPS), and whether the commissioner would accept him back as a member of the SAPS, and if she would assign any functions or duties to him before the finalisation of the intended appeal, which may proceed in the Supreme Court of Appeal and or the Constitutional Court," he wrote.
Ledwaba said, if it was acceptable to Phiyega, then he would like to know when Mdluli intends starting with his duties. Mdluli’s lawyer, Ike Motloung, had been asked to take instructions from his client.
"Likewise, the commissioner’s legal representatives were directed to take instructions from the commissioner to determine if the commissioner intends accepting the general back for him to continue with his duties as a member of the SAPS before the finalisation of the appeal in the Supreme Court of Appeal, or the Constitutional Court, should the general want to continue with his duties as a member of the SAPS."
Both parties have been directed to answer Ledwaba by the end of this week and the matter is causing a stir in legal circles as they await the responses.