The Supreme Court of Appeal (SCA) has upheld three out of four orders ruled on by Pretoria high court judge John Murphy in September last year, in which Murphy reviewed and set aside decisions by the National Prosecuting Authority (NPA) and the commissioner of police to withdrawn corruption charges and disciplinary proceedings against former crime intelligence boss Richard Mdluli during 2012.
However, the SCA differed on a decision by Murphy to order that the 18 criminal charges, which included murder and attempted murder charges against Mdluli, should be reinstated. The SCA found that the decision to withdraw these charges by Andrew Chauke, the director of public prosecutions for South Gauteng in early 2012 was not "irrational" – as deemed by Murphy in his judgment last year.
However, the appeals court did include an order in its judgment on Thursday that the national director of public prosecutions must decide which of the 18 criminal charges will be reinstated. Either of the decisions must be relayed to legal watchdog Freedom Under Law (FUL) within the next two months, the SCA ruled.
The police, the NPA and Mdluli had appealed to the SCA to overrule several orders made by Murphy in an application brought by FUL in May 2012. FUL's successful Pretoria high court application sought to force the NPA to reinstate corruption and murder charges against Mdluli and to order the national police commissioner to reinstate and conclude disciplinary charges against him.
Murphy ordered that the reinstitution of corruption and murder-related charges, as well as the internal police disciplinary proceedings against Mdluli should be done "without delay".
Mdluli, the police and the NPA subsequently won an application for leave to appeal Murphy's ruling.
Suspended
Mdluli was suspended as the head of the police’s crime intelligence division in mid-2011, shortly after he was charged for the murder of love rival Oupa Ramogibe in 1999. In September 2011 Mdluli was charged separately for fraud and corruption relating to his alleged abuse of crime intelligence’s secret service account. Following these charges the police initiated disciplinary charges against Mdluli.
The crux of FUL's 2012 Pretoria high court application was based on the following decisions – as outlined in the SCA judgment by Judge Fritz Brand – made by police management and the NPA with regards to charges against Mdluli:
- A decision by Lawrence Mrwebi, the head of the NPA’s Specialised Commercial Crime Unit “on or about” December 5, 2011 to withdraw fraud and corruption charges against Mdluli;
- A February 2, 2012 decision by Chauke to withdraw the murder-related charges against Mdluli;
- A decision by then acting police commissioner Nhlanhla Mkhwanazi in February 2012 to terminate internal police disciplinary proceedings against Mdluli;
- And a decision in March 2012, also by Mkhwanazi, in which Mdluli was reinstated to his office.
It was these decisions, which FUL argued in May 2012, that were irrational and unlawful, and which should be set aside.
In the SCA judgment, Brand upheld Murphy's setting aside of the decisions by Mrwebi and the police's management with regards to the corruption charges and internal disciplinary charges against Mdluli.
However, Brand noted that while Murphy ordered that these be reinstituted "without delays", the SCA did not confirm this decision, "because … this would constitute undue interference with the function of the executive and a transgression of the separation of powers".