The Supreme Court of Appeal reserved judgment in the appeal of suspended police crime intelligence head Richard Mdluli and the National Prosecuting Authority (NPA) on Tuesday.
A full supreme court bench heard arguments in an urgent appeal by Mdluli, the South African Police Service (SAPS) and the NPA against a high court decision that criminal charges and a disciplinary case should be re-instated against Mdluli.
William Mokhari, for the SAPS, argued that the high court in Pretoria went too far when it made its order.
The appeal concerns a ruling in favour of lobby group Freedom Under Law to set aside an NPA decision to withdraw criminal and disciplinary charges against Mdluli.
On September 23 2013 high Court in Pretoria Judge John Murphy found in the group's favour and set aside the decisions to withdraw charges of fraud, money laundering, murder, and disciplinary proceedings against Mdluli.
Mdluli, the NPA, and the Specialised Commercial Crime Unit were granted leave to appeal against Murphy's ruling.
Outcomes still pending
Mokhari submitted that the high court order was of no real value because Mdluli was re-suspended by the SAPS, and charged again, and the outcomes of these steps were still pending.
Replying to a question, Mokhari agreed the SAPS had not given reasons for the withdrawal of the initial charges against Mdluli.
He contended the matter between Mdluli and the SAPS was a labour issue and should not have gone to a high court.
Ike Motloung, for Mdluli, argued parties such as Freedom Under Law could not approach a high court without making submissions to other relevant institutions first.
He submitted the group's approach was premature and the supreme court should consider the effects of indiscriminate approaches to the high courts.
Lawrence Hodes, for the NPA, submitted not all internal procedures to convince the NPA to reinstate charges against Mdluli were followed. He argued any party wanting to re-institute charges against anybody had to approach the NPA first.
"Any prosecutor in any court can decide to withdraw charges… [on reinstatement] then in my submission there are certain procedures to be followed before a court can be approached."
Suffer undue delay
Counsel for Freedom Under Law, Seena Yacoob, submitted her client did not want to see the issues affecting Mdluli suffer undue delay.
In papers filed in the supreme court, the organisation submitted that decisions by the SAPS and the NPA could not be above a review process in court, especially if the institutions did not do their work.
Nobody would then be able to question the NPA when it failed to do its job, as prescribed by the Constitution. Yacoob submitted Freedom Under Law did not want to see a supreme court decision on the matter that would give the SAPS "unlimited time" to resolve the Mdluli issue.
Two supreme court judges, Judge Kenneth Mthiyane and Judge Mahomed Navsa, expressed concern about the allegations concerning the atmosphere within the SAPS's security establishment.
"Everybody should be concerned," said Navsa. Judgment was reserved. – Sapa