It will be legally appropriate for the national director of public prosecutions (NDPP) to handle a review of the Richard Mdluli case, the North Gauteng High Court heard on Wednesday.
Laurance Hodes SC, representing the NDPP, argued that reviewing the Mdluli saga should not be up to the court.
"There can be no doubt that a decision to provisionally withdraw, or to finally withdraw a decision [to prosecute] falls within the powers that are ascribed to the NDPP," he said.
"In the absence of an approach through the NDPP for a review … there cannot be an approach to a court to intervene," said Hodes.
Citing several legal experts' commentaries on the Criminal Procedure Act, Hodes said organisations did not have the right to compel the National Prosecuting Authority (NPA) to prosecute.
"Who has the right to compel the NPA to act? It is a fair question, because the act answers that. It says an interested party has to be an individual, so it does not have to be an organisation?
"Who has the power to withdraw a charge? The answer is anybody in the NPA, and it is not circumscribed," said Hodes.
Charges against Mdluli
Judge John Murphy adjourned the matter to Thursday, when Hodes will resume his submissions.
The lobby group, Freedom Under Law, brought an application for a review and setting aside of the decision to withdraw criminal and disciplinary charges against the controversial former police crime intelligence head.
Mdluli was suspended amid charges of fraud and corruption, and charges relating to the murder of his ex-lover's husband.
An inquest cleared him of any involvement in the murder. The charges of fraud and corruption were also later withdrawn.
He was reinstated, but was again suspended in 2012 pending the court application to review the withdrawal of the criminal and disciplinary charges against him.
The court heard on Wednesday that, with regard to the case involving his ex-lover's husband, Mdluli had faced 18 charges including assault, kidnapping and intimidation.
Vincent Maleka SC, representing Freedom Under Law, told the court that NPA specialised commercial crimes unit head Lawrence Mrwebi did not have the power to drop the charges against Mdluli.
He said only the NDPP could legitimately review the prosecution.
Maleka quoted from transcripts of the disciplinary hearing of NPA prosecutor Glynnis Breytenbach, suggesting that Mrwebi had also not properly consulted his colleagues about the charges against her.
"When Mrwebi consulted [advocate Sibongile] Mzinyathi, he had already made up his mind [about dropping the charges against Mdluli]," said Maleka.
Mzinyathi is the director of public prosecutions in Pretoria.
The withdrawal of charges against Mdluli was done without the "meaningful consultation as prescribed in law", said Maleka.
On Wednesday morning, Murphy allowed news crews to film the court proceedings.
"We all agree this is a matter of great public concern. There will be no objection from us [to the filming of the proceedings]," said Maleka.
Representatives of the police and the NPA also did not object. – Sapa