Power of judicial oversight confirmed as Mdluli case bubbles up again
In April, the appeal court upheld three out of four high court orders to review and set aside decisions by the National Prosecuting Authority (NPA) to withdraw charges against the former crime intelligence boss.
On March 31 2011, Mdluli was charged with 18 counts – including murder, intimidation, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice. The murder charge related to the 1999 killing of Tefo “Oupa” Ramogibe, who was married to a woman with whom Mduli had also had a relationship.
The charges of fraud and corruption originated in the unlawful use of funds held in a secret account that were used, it was alleged, for the private benefit of Mdluli and his wife.
By December 2011 the fraud charges had been withdrawn by NPA special director of public prosecutions Lawrence Mrwebi, and the murder and related charges had been withdrawn by advocate Andrew Chauke, the director of prosecutions for South Gauteng.
In March 2012, Mduli was reinstated as head of the police’s crime intelligence division.
The nongovernmental organisation Freedom Under Law (FUL) took the matter to court, successfully persuading Judge John Murphy to grant orders setting aside these decisions and a further order reinstating all criminal charges against Mdluli.
On appeal to the appeal court, the national director of public prosecutions (NDPP) argued about the basis of a court exercising review power over a decision not to prosecute.
Appeal court Judge Fritz Brand held that prosecutorial decisions are in principle reviewable, and that the principle of legality empowers the court to undertake a review of a decision, in this case, not to prosecute. That means that all NDPP decisions are reviewable on the grounds of irrationality and if the decision-maker fails to act in accordance with the empowering statute.
On the fraud charges, Brand dealt with FUL’s argument that Mrwebi had not consulted the director of public prosecutions (DPP), as required in terms of section 24(2) of the NPA Act, before he dropped the fraud charges. On the evidence, the court found that Mrwebi’s claim that he had consulted the relevant DPP before taking the decision to withdraw the fraud charges was “untenable and incredible to the extent that it falls to be rejected out of hand”. Hence, the appeal against the Murphy decision failed.
Turning to the murder and related charges, Brand found that Chauke’s decision to withdraw these charges could not be found to be irrational. Chauke had explained that he had withdrawn the charges pending the outcome of an inquest into the cause of Ramogibe’s death. On Murphy’s finding that Chauke’s failure to proceed with the charges after the inquest constituted an irrational decision, Brand held that this point had not formed the basis of FUL’s review application, so this part of the appeal had to succeed.
But the judge also noted that counsel for the NDPP conceded that some of the murder and related charges were bound to be reinstated and that the NDPP would make a decision within two months. If he decided not to reinstate all 18 charges, Chauke would have to provide reasons to FUL for this decision.
Brand did not agree with the order of the court to reinstate charges, holding that this constituted “inappropriate transgressions of the separation of powers doctrine”. Thus, a court is precluded from impermissibly assuming the powers of the NDPP.
So the upshot is that we must wait two months to see what the NDPP decides. It is a legitimate question to ask whether the now “obvious reconsideration” by the NDPP of any charges against Mdluli would have taken place without Freedom under Law’s litigation.
In some ways, this is a very disappointing decision. This judgment of South Africa’s second-highest court is resplendent in its jurisprudential shallowness. It hardly provides guidance to future courts that may be faced with similar review applications. Save for a ritual incantation of the doctrine of the separation of powers, it does not offer concrete reasons for refusing to reinstate the fraud charges. Its approach to the murder charges fails to deal with much of the reasoning employed and evidence cited by Murphy when he arrived at the contrary conclusion.
And yet, all things considered, it is a judgment that confirms the power of judicial review over prosecution decisions and reveals the appeal court’s willingness to examine the rationality of an NDPP decision. This is an important assertion of the rule of law. It will surely play a significant role if a review of the NDPP’s decision not to prosecute President Jacob Zuma on corruption charges is ever heard by the courts.