The South African Police Service was criticised by the high court in Pretoria on Monday for its handling of the allegations against former crime intelligence boss Richard Mdluli.
Judge John Murphy said the withdrawal of disciplinary charges against Mdluli by then acting national commissioner of police, Lieutenant General Nhlanhla Mkhwanazi, and his reinstatement were "in dereliction of his constitutional and statutory duties".
"By withdrawing the disciplinary proceedings against Mdluli and allowing him to resume his senior position in the SAPS when there were serious and unresolved allegations against him, the acting commissioner frustrated the proper functioning of the SAPS Act," said Murphy in his written judgment.
"He also undermined the integrity of SAPS and failed to ensure that it operated transparently and accountably."
The conduct of national police commissioner Riah Phiyega was also questioned.
"She apparently sees no need to place any obstacles in the way of Mdluli's return to work, despite her constitutional duty to investigate allegations against him and the unfeasibility of his holding of a position of trust at the highest level in SAPS," the judge said.
"For as long as there are serious unresolved questions concerning Mdluli's integrity, he cannot lawfully act as a member and senior officer of the SAPS, or exercise the powers and duties associated with high office in the SAPS."
Murphy ordered the National Director of Public Prosecutions (NDPP) to reinstate criminal charges and Phiyega to restore disciplinary proceedings against Mdluli in a ruling this morning.
The decision to reinstate Mdluli as head of crime intelligence was also set aside.
"The decision made on February 2012 by first respondent (NDPP) in terms of criminal charges of murder, kidnapping, intimidation and assault with intent to do grievous bodily harm and defeating the ends of justice is hereby reviewed and set aside," said Murphy.
"The decision made on March 31 2013 by or on behalf of second respondent (national police commissioner) whereof fifth respondent (Mdluli) was reinstated as head of criminal intelligence in the South African Police Service with effect from March 31 2012 is hereby reviewed and set aside."
Murphy said charges should be reinstated against Mdluli "without delay".
"The first and third respondents (NDPP and head of specialised commercial crime unit respectively) are ordered to reinstate forthwith the criminal charges, which were instated against the fifth respondent (Mdluli) under case number 155/07/2011 and case number 340/02/99 and to take such steps as are necessary to ensure that criminal proceedings for the prosecution of the criminal charges under the aforesaid cases are re-enrolled and prosecuted diligently and without delay."
In addition, the national police commissioner was instructed to take steps to reinstate disciplinary charges against Mdluli "without delay".
"The second respondent (national police commissioner) is ordered to reinstate disciplinary charges, which had been instituted against fifth respondent (Mdluli) but were subsequently withdrawn on February 29 2012 and to take such steps as are necessary to institute or reinstate disciplinary proceedings that are necessary for the prosecution and finalisation of the aforesaid disciplinary charges, diligently and without delay."
Murder, fraud and corruption
The application for a review and the setting aside of the decision to withdraw criminal and disciplinary charges against Mdluli was brought by lobby group Freedom Under Law (FUL).
The controversial former crime intelligence head was suspended amid charges of fraud and corruption, as well as charges relating to the murder of his ex-lover's husband.
An inquest cleared him of any involvement in the murder. The National Prosecuting Authority later withdrew charges of fraud and corruption. He was reinstated, but again suspended in 2012 pending FUL's application.
Murphy said: "The decision made on or about 5 or 6 December 2011, as the case may be, by the third respondent (head of specialised commercial crime unit) in terms of criminal charges of fraud, corruption, and money laundering instituted against the fifth respondent (Mdluli) were withdrawn is hereby reviewed and set aside."
Laurance Hodes SC, for the NDPP, argued in court earlier this month that instead of "marching off to court", FUL should have sought the review from the NDPP.
Hodes said the Mdluli matter had been provisionally withdrawn, which did not amount to a discontinuation of the prosecution process.
Decisions on whether to prosecute lay with the NDPP, not with courts, Hodes had argued. – Sapa