Ousted Hawks boss Mthandazo Berning Ntlemeza can lawfully return to his office on Monday — despite newly appointed Minister of Police Fikile Mbalula promising fire and brimstone if he does.
Mbalula warned Ntlemeza not to pitch for work after the former Hawks boss told City Press only Parliament can remove him from his position and that he would return to his office when he got back from his holiday in the Eastern Cape.
Even the Democratic Alliance has threatened to charge Ntlemeza with defeating the ends of justice should he return.
Despite every effort to keep him out, the attorneys of the Helen Suzman Foundation this week acknowledged that, by virtue of the Superior Courts Act, he was entitled to return to work, albeit temporarily.
The foundation and Freedom Under Law have been fighting the appointment of Ntlemeza through the courts since 2015, when he was contentiously appointed permanently to lead South Africa’s elite corruption busting unit. Last month the appointment was reviewed and set aside by the high court in Pretoria when a full Bench of three judges confirmed his inappropriateness for the top job, saying he lacked “honesty, integrity and conscientiousness”.
Last week the court dismissed Ntlemeza’s application for leave to appeal, leaving the minister with only one option — to petition the Supreme Court of Appeal (SCA). The legal effect of this petition would be to suspend the high court order, and allow Ntlemeza to return to work, until the SCA had its say.
To close this gap, the high court gave a further order: that its judgment “will continue to be operational and executed in full whether or not there are any applications for leave to appeal or there is any petition for leave to appeal”.
Known as an execution order, its purpose was to ensure that, whatever appeals followed, Ntlemeza would be forced to stay at home as the appeal options were depleted.
When Mbalula withdrew the ministry’s appeal initiated by his predecessor, it looked like the end for Ntlemeza.
But Ntlemeza’s attorney, Comfort Ngidi, says he has an ace up his sleeve that will get his client back to the office on Monday.
“Sometimes one needs a bit of luck on your side, and this happened when the HSF [Helen Suzman Foundation] asked for the [execution] order to keep Ntlemeza out of the office,” Ngidi said.
Ngidi is relying on the relatively recently enacted Superior Courts Act of 2013. Section 18 of the Act deals with what happens to court orders on appeal and when, in exceptional circumstances, execution orders will be granted.
But section 18(4) says that when such an exceptional order is granted, the aggrieved person has an “automatic right of appeal” and that the order granted will be “automatically suspended, pending the outcome of such appeal”.
Said Ngidi: “Our client will go back to his position on Monday. Our understanding is that when we appeal the ‘stay at home order’ to the SCA, the high court order is suspended until such time as the appeal proceedings are concluded.”
One other provision of 18(4) is that the court “must deal with it as a matter of extreme urgency”.
Whether or not this appeal succeeds, Ntlemeza can, at a later stage, petition the SCA to hear the merits of his case.
Vlad Movshovich, the attorney for the foundation, said Ntlemeza initiated legal proceedings to appeal the “stay at home order” and confirmed that he is entitled to return to the Hawks office in Silverton, Pretoria, once the appeal is lodged.
In a letter dated April 19, Movshovich asked the court to heed the provision that the appeal must be dealt with “as a matter of extreme urgency”.
“This is an office of extraordinary power, in which decisions of national import are made daily, including the very structuring of the [Hawks], and hundreds of ongoing investigations,” Movshovich said.
It is these technicalities that are protecting Ntlemeza’s job — for now — and not his claims that he can only be removed by Parliament.
When Ntlemeza said only Parliament could remove him, he was referring to section 17DA of the South African Police Act.
It provides that the Hawks head can only be removed with “the support of at least two-thirds of the members of the National Assembly to be implemented”. The only other way the Hawks head can be removed is if he asks to leave his position.
But constitutional law expert Pierre de Vos and the Institute for Security Studies’ Gareth Newham disagree that Ntlemeza can rely on those provisions, because the legal effect of the high court judgment is that he was never appointed.
De Vos says: “The independence of the Hawks as well as its head is well protected in law. However, the high court reviewed and set aside the decision to appoint Ntlemeza. If he was never appointed, there is nothing to protect.”
Newham agrees: “It is as simple as that. We revert to the situation as it was before Ntlemeza was appointed as Hawks head.”
He said Ntlemeza’s rank will also be affected. “He is now an ordinary member of the police with the rank of major general, and not that of lieutenant general.”
Ntlemeza headed the Limpopo police with the rank of major general before he was appointed as Hawks head in September 2015.
When the high court set aside Ntlemeza’s appointment last month, a full Bench of three judges, led by Judge Peter Mabuse, was very critical of former police minister Nathi Nhleko, saying he had ignored the two earlier court judgments.
The two judgments found that Ntlemeza’s decision to remove Gauteng Hawks boss Shadrack Sibiya was “taken in bad faith and for reasons other than those given”, that he “misled the court”, was “biased and dishonest” and “lacks integrity”.
Mabuse said: “This was a quintessential example of the minister completely ignoring and brushing aside remarks by a court.”
When Ntlemeza accepted the job as Hawks head, he had to resign from his position as Limpopo head of the police, said the DA’s Zakhele Mbhele. A successor has already been appointed.
This means Ntlemeza is a high-ranking police officer without a position. When asked whether the police have a position for Ntlemeza, Mbalula’s spokesperson Vuyo Mhaga said no space has been created for Ntlemeza.
“We haven’t discussed what to do with him yet. But he is past retirement age.”