/ 3 October 2013

Mdluli judgment holds major implications for Zuma

Legal loopholes: The NPA’s advocate Lawrence Mrwebi
Legal loopholes: The NPA’s advocate Lawrence Mrwebi (centre) withdrew charges against Richard Mdluli. (Madelene Cronjé)

The application to set aside decisions made by members of the National Prosecuting Authority (NPA) to withdraw criminal charges against suspended crime intelligence boss Richard Mdluli may be characterised as a legal curtain-raiser to the main match, the drawn-out saga in which the Democratic Alliance seeks to review the decision to withdraw criminal charges against Jacob Zuma.

On March 31 2011 Mdluli was arrested and charged with 18 counts, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice. It is alleged that on February 17 1999 he was a party to the killing of Tefo Ramogibe, who, at the time, was married to a former lover of Mdluli.

In late September 2011 Mdluli was arrested and charged on further counts of fraud, corruption, theft and money laundering relating to the alleged unlawful utilisation of funds from a secret service account, which he then used for his personal benefit and that of his spouse.

It was the withdrawal of these charges against Mdluli that caused Freedom Under Law to launch an application to set aside the decision to withdraw these charges.

In an eloquent, courageous and important judgment, Judge John Murphy upheld the application.

The decision to withdraw the fraud and corruption charges was taken by advocate Lawrence Mrwebi, a special director of public prosecutions and head of a specialised commercial crimes unit in the NPA.

From the evidence, it was clear that in taking this decision he had not consulted the director of public prosecutions for North Gauteng, advocate Sibongile Mzinyathi, and had ignored compelling legal advice, which indicated that the basis for his decision to withdraw the charges had no basis in law.

For unsubstantiated reasons, Mrwebi claimed that the charges initiated against Mdluli had been pursued with an ulterior motive and that the offences all fell within the mandate of the inspector general of intelligence. Murphy held that neither of these findings had any basis in law but were rather predicated on irrelevant considerations, which constituted material errors of law and fact.

For Mrwebi to contend that the issue should have been referred to the inspector general of intelligence ignored the clear legal position that the inspector general's mandate did not extend to criminal investigations.

The withdrawal of the murder and related charges was equally disturbing. These charges were withdrawn by advocate Lawrence Chauke, the director of public prosecutions (DPP) for South Gauteng.

To a considerable extent Chauke relied on the findings of an inquest to determine the cause of Ramogibe's death. The inquest magistrate had concluded that there was no evidence, on the balance of probabilities, implicating Mdluli.

Murphy found, after examining the affidavits which had been placed before the magistrate at the inquest, that there was indeed a prima facie case against Mdluli on the murder-related charges. Chauke had failed to deal properly with this incriminating evidence against Mdluli and had "offered no evaluation of the cogency of the circumstantial evidence against Mdluli".

Furthermore, a senior member of the NPA should have known that an inquest is an investigatory process directed primarily at establishing a cause of death and is not aimed at determining the guilt of a person.

​Chauke had behaved in an irrational and implausible fashion, which justified a finding that his decision should be set aside.

Perhaps the most devastating part of this judgment was the rejection by the court of the argument by the national director of public prosecutions (NDPP) that in relation to the criminal charges they should be referred back to the NDPP for a fresh decision. That is the usual approach adopted by courts in review cases.

However, Murphy said the following: "The NDPP and the DPP have not demonstrated exemplary devotion to the independence of their offices or the expected capacity to pursue this matter without fear or favour. Remittal back to the NDPP, I expect, on the basis of what has gone before, will be a foregone conclusion …" For this reason the judge ordered the reinstatement of the charges, thereby ensuring that the NPA would prosecute Mdluli diligently and expeditiously.

If this is the curtain-raiser to the main match between the DA and Zuma, the compelling assertion by the court that the discretion conferred upon a prosecuting authority is not unfettered and a review of a prosecutorial decision to withdraw charges is permissible on legality and rationality grounds, holds significant implications for the attempt to reinstate charges against Zuma.

But beyond this, the devastating criticism of the conduct of senior members of the prosecuting authority by the court should give us considerable pause. The level of legal incompetence, the lack of independence and commitment to duty by so important an institution should, at the very least, prompt a full-scale investigation into the state of prosecution in South Africa.

On the basis of this judgment, the NPA cannot be trusted to do its important work in politically charged cases. In turn, a corrupt or incompetent NPA is a fatal flaw in our democratic system.