Arguing for Mkhwanazi at the Johannesburg Labour Court on Thursday, Advocate William Mokhari SC said Mdluli’s version that Lieutenant General Fannie Masemola had fabricated evidence regarding Mdluli’s notice of intended suspension “is so far-fetched that it falls to be rejected”.
Earlier, Mdluli’s lawyer Graham Moshoana argued his client had not received a notice of intended suspension from Masemola on May 15 and further, that a letter written by Masemola two days later to Mdluli “was generated after the fact”.
But Mokhari rubbished this version and questioned why Masemola would fabricate evidence. “He has nothing against Mdluli. Why would he fabricate the letter or his version,” he asked.
Mokhari questioned why Mdluli had not attached confirmatory affidavits to support his claim as Mkhwanazi had done. “A bare denial is not enough,” Mokhari said. He also rejected Moshoana’s claim that the onus of proof in this matter fell with Mkhwanazi. “The onus still rests with the person who brought the application.”
Mdluli maintains he only found out about his suspension on May 27, after his lawyer heard about it on the news. But in his affidavit, Mkhwanazi claimed Mdluli was personally given the notice of intended suspension by Masemola on May 15. Mdluli failed to respond to the notice, Mkhwanazi said, which therefore led to his suspending Mdluli on May 25.
“On May 31, Mdluli launched his urgent court bid to have his suspension overturned. Mdluli’s matter was set down for [Thursday] after the Labour Court revoked an initial court order for Mdluli’s suspension to be lifted in June.”
Mokhari later dealt with Moshoana’s submission that Mdluli had applied for leave to appeal an order by the North Gauteng High Court preventing him from performing any official police duties.
The high court made the ruling two weeks ago after lobby group Freedom Under Law brought an interdict application against Mdluli.
The high court ruled in the organisation’s favour pending the outcome of an application for a full high court review of the decision that led to his reinstatement to crime intelligence in March.
Mokhari argued that Mdluli could therefore not appeal the ruling as it was only a temporary order. He argued it was “legally untenable” for the Labour Court to enforce an order overriding the high court’s ruling.
Mokhari said the matter was academic and that the Labour Court “does not pronounce itself on academic orders … only on orders that can be enforced”. Moshoana earlier submitted that Mdluli’s application meant that the high court ruling was suspended which would allow the Labour Court to enforce a ruling. “This court has the same status as the high court.
“It has got powers to deal with matters falling under its jurisdiction. There may be practical considerations but this court is entitled to determine the matter,” Moshoana said.
Mokhari claimed Mdluli did not have a case and that he ought to have taken his matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) and not the Labour Court, due to his claim being contractual and not one of unfair dismissal.
‘Fresh disciplinary inquiry’
Mdluli was first suspended last year by former national police commissioner Bheki Cele after he was arrested and charged with the 1999 murder of Oupa Ramogibe. He was also later arrested for fraud and corruption. Both cases were withdrawn by the National Prosecuting Authority.
His suspension was lifted on March 28 2012.
On May 31, Mdluli launched his urgent court bid to have his suspension overturned. The matter was set down for Thursday after the Labour Court overturned an initial court order for Mdluli’ suspension to be lifted on June 1.
On top of Mdluli’s suspension battle at the Labour Court, he was served with a charge sheet on June 12, with reasons for a “fresh disciplinary inquiry” against him set down for July 2.
Mdluli faces 10 charges relating to his alleged abuse of crime intelligence’s Secret Services Account, including spending R150 000 on security upgrades to his private residence, as well as R99 900 allegedly used to fund two trips, one to China and one to Singapore in November 2009.
Mdluli also faces charges related to allegations of nepotism and further slush fund abuses with regards to the funding of his family’s air travel totalling R84 000 during 2010/2011.
Judgment was reserved and will be handed down on Monday morning.
May 13 2012: Mkhwanazi signs a notice of suspension letter.
May 15: Masemola says he personally gave the notice to Mdluli.
May 16: Mdluli sends a message to Masemola saying he is sick and has been booked off work until May 27.
May 25: Mkhwanazi suspends Mdluli.
May 27: Mdluli claims this is the first he has heard of his suspension.
May 31: Mdluli puts together an urgent application to have his suspensio lifted.
June 1: The Labour Court orders Mdluli’s reinstatement.
June 3: SAPS win an application to have the Labour Court’s previous order revoked.
June 21: Both parties in court.
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