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25 Jun 2012 16:07
Former crime intelligence boss Richard Mdluli.
“This application is stayed, pending the final outcome of any appeal against the order granted by the North Gauteng High Court ... ,” Judge Andre van Niekerk said on Monday.
He said this was because Mdluli had filed an application for leave to appeal an interim order granted in the North Gauteng High Court in Pretoria on June 6 to Freedom Under Law that he be suspended and not be allowed to do police work.
In his judgment, Van Niekerk said it was not for the Labour Court to decide on the merits of the Pretoria judgment, or even to decide whether that one is final or “appealable”.
But he did not want to undermine a high court, which had equal status as a Labour Court, or to be held “hostage” by those processes, which might include a petition to the Supreme Court of Appeal.
It was neither necessary nor appropriate at this stage to make a finding on the merits of Mdluli’s claim regarding his suspension.
That might happen later.
He noted advocate William Mokhari’s submission, for the South African Police Service, that an interim order could not be appealed.
Put on holdUsually, an application for leave to appeal would put a ruling on hold, so in this instance the suspension stays in place.
“In that sense, any order granted by this court would stand in conflict with the high court’s order,” said Van Niekerk.
Speaking outside court, Mokhari said: “The effect of today’s order is that Mr Mdluli cannot report for duty.”
His disciplinary hearing would also go ahead on July 2, he said.
Mduli’s own counsel, Graham Moshoana, said his client, who was not present, would probably regard the judgment as a “lifeline” in that it was not thrown out of the court.
Monday’s judgment related to an urgent application by Mdluli when, on the state’s case, murder and fraud charges were going to be reinstated against him and he was going to be suspended to allow for disciplinary procedures associated with some of these allegations.
Fraud and corruption chargesIt would have been untenable to keep him at work during this time.
Mdluli had made an urgent application to the Labour Court for a declaratory order setting aside this latest suspension and an order that he be reinstated to his position immediately.
Last year, Mdluli faced a raft of fraud and corruption charges relating to the alleged misuse of a secret crime intelligence fund to buy luxury vehicles.
He also faced a charge of murder relating to the death of an ex-girlfriend’s husband, Abel Ramokgibi.
These charges led to his first suspension, but they were controversially withdrawn and he was reinstated, hence Freedom Under Law’s application.
According to Van Niekerk’s summary of facts in his judgment, on May 13 former acting national commissioner of police Nhlanhla Mkhwanazi signed a notice, addressed to Mdluli, of his intended suspension in terms of regulation 13(1) of the SAPS Discipline Regulations.
Secret service accountThis was on the grounds of new information on Ramokgibe’s murder and the attempted murder of Alice Manana in 1998/99, the mismanagement of state finances, and the improper use of the secret service account.
Manana is a friend of Mdluli’s ex-girlfriend, reportedly Tshidi Buthelezi.
The Labour Court heard that there is a dispute over whether Mkhwanazi gave Mdluli the notice of intention to suspend at a meeting on May 15.
In the absence of a response from Mdluli on why he should not be suspended, the actual notice of suspension was signed on May 25.
Mkhwanazi said he wrote a letter to Mdluli saying he gave him the notice of intention on May 15, but Mdluli says this letter was falsified.
Mdluli applied to the Labour Court to challenge his suspension and the matter was supposed to have been heard on Monday June 4.
Brought forwardBut in a sequence of events, which involved swapped lawyers and a court date brought forward to Friday June 1 instead of June 4, the suspension was lifted.
Then in an urgent application on Sunday, June 3, that order was rescinded and the application for Mdluli to challenge the suspension was heard last Friday, June 21.
Van Niekerk was satisfied that the case concerned a contract of employment between Mdluli and the Saps, and that the Labour Court has jurisdiction in terms of Section 77 of the Basic Conditions of Employment Act to entertain the application.
Once the Mdluli case was adjourned, the court began hearing that of senior advocate Glynnis Breytenbach.
She believes her suspension is related to her investigation of Mdluli, but the National Prosecuting Authority denies this.
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