Richard Mdluli’s defence has questioned the authenticity of the police’s evidence that the former police intelligence chief was served with a notice of intended suspension on May 15.
Mdluli’s lawyer, Graham Moshoana, argued at the Johannesburg Labour Court on Thursday morning that Mdluli’s May 25 suspension by former acting national police commissioner Nhlanhla Mkhwanazi was unlawful, after he suggested that the version of events given by Lieutenant General Fannie Masemola “have to be doubted”.
The “bone of contention” in the matter, according to Moshoana centres on Mdluli’s unequivocal denial of ever having received the notice of intended suspension, versus the police’s assertion that it was served to him personally by Masemola on May 15.
Moshoana argued that the onus to prove that the notice was served to Mdluli falls on the police and Masemola.
Moshoana suggested the only way to make a finding on whose version of events was true would be through through the oral cross-examination of witnesses.
In an affidavit filed by Mkhwanazi last week, he claimed Mdluli was personally given the notice of intended suspension by Masemola on May 15, after Mkhwanazi had signed the document on May 13.
Emotional stress and hypertension
According to Mkhwanazi, after Mdluli was served with the notice of suspension, he sent an SMS to Masemola informing him that his doctor had booked him off sick for “emotional stress and hypertension”.
Mdluli was booked off from May 16 to May 27.
Mkhwanazi said Mdluli was therefore “afforded an opportunity” to give reasons on why he should not be suspended, “which he did not exercise when he decided to play hide and seek with SAPS”.
Mdluli admitted to meeting Masemola on May 15, but according to his affidavit the meeting was about Mdluli’s transfer out of crime intelligence and not about a notice of his intended suspension.
Moshoana also took aim at a May 17 letter, penned by Masemola to Mdluli, which Moshoana suggested on Thursday morning was fabricated to suit the police’s version of events.
In the letter Masemola said: “I served you with a notice of intended suspension and you took it and said you will send me the acknowledgment of receipt, once you met with your lawyer the next day. You promised to send it to my office the next day, however, nothing was received to date.”
Masemola’s letter was fabricated
But during arguments on Thursday morning, Moshoana put it to the court that “Masemola’s letter was fabricated, and it did not reach Mdluli”.
“[Mdluli] is saying there is a fabrication, as he is denying that the May 15 conversation happened at all. Masemola found it opportune to add in the last paragraph of the letter that Mdluli did receive the notice of intended suspension. Let’s look at that version and compare it to the 15th, where he [Masemola] says he had already given him a copy. Then why must he reattach a copy of it? That goes to show, this was generated after the fact.”
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 today 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 totalled R84 000 during 2010/2011.
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 suspension be 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.