Ntlemeza’s lone battle suffers a setback

Hawks head Mthandazo Berning Ntlemeza must stay away from work while the appeal court decides whether he is fit and proper to head the elite police unit, the high court in Pretoria decided on Thursday.

The judgment was a victory for Police Minister Fikile Mbalula, who has been at loggerheads with Ntlemeza over whether he could return to work pending his appeal to the Supreme Court of Appeal.

Their stand-off escalated last month when, despite a court order setting aside Ntlemeza’s appointment as the head of the Directorate for Priority Crime Investigation (Hawks), he ambled into work on April 24.

A furious Mbalula then went to the Hawks head office and held a press conference denouncing Ntlemeza’s return and saying he would not allow him to turn South Africa into “banana republic”.

Ntlemeza then went to court urgently for an order that would allow him to return.

After the judgment, Mbalula said he “had always been right” on the correct interpretation of the law.

The judgment, by Judge Sheila Mphahlele, will apply until the appeal court has had its say. It is due to hear the case on June 2.

Ntlemeza is hoping the court will overturn the decision of a full Bench of the high court in March, which set aside his appointment by former police minister Nathi Nhleko.

The court said the appointment was unlawful because Nhleko had not properly considered a scathing judicial rebuke in an earlier case Ntlemeza had been involved in.

The axed Hawks head has been the subject of controversy from even before he was permanently appointed to head the Hawks.

His acting appointment as Hawks head came on the back of the suspension of his predecessor Anwa Dramat, who claimed he was being targeted because of several high-level investigations.

And, when Ntlemeza suspended Gauteng Hawks head Shadrack Sibiya, Sibiya claimed Ntlemeza was an “ally” of former crime intelligence boss Richard Mdluli. Ntlemeza has always dismissed this as far-fetched and a conspiracy theory.

When Sibiya challenged his suspension in the high court in Pretoria, Judge Elias Matojane described Ntlemeza as “biased and dishonest” and said he “lacks integrity and honour; he made false statements under oath”.

This led to two nongovernmental organisations, Freedom Under Law and the Helen Suzman Foundation, challenging his appointment, saying he was not fit and proper for the post.

A full Bench, led by Judge Peter Mabuse, agreed and set aside the appointment. It refused leave to appeal and also granted an execution, or enforcement, order – ruling that, even if its judgment is appealed, it must be enforced until the appeal has been decided.

Normally, an appeal suspends a court order. But the effect of the enforcement order was that Ntlemeza could not return to work unless and until the appeal court decided differently.

Up to that point, he had the full backing of Nhleko in court. But Mbalula, surprising many, said he would not appeal the decision, leaving Ntlemeza to fight for his job on his own.

Mphahlele’s judgment turned on two questions: whether the case was urgent and whether section 18(4) of the Superior Courts Act was applicable in Ntlemeza’s case.

Section 18(4) says that if an enforcement order is appealed it is itself suspended. If the section applied, it would have meant that Ntlemeza could have gone back to work.

But Mbalula had argued that section 18(4) did not apply because of the clear wording of the enforcement order.

Although the “default position” was as described by Ntlemeza, “properly interpreted, the order of the full court specifically altered the default position”. “I agree,” said Mphahlele. “The wording of the order … is very clear.”

She also agreed that it was not for her, a single judge in an urgent court, to overturn a full Bench.

She added that Ntle­meza had failed to show that he would suffer irreparable harm if he was not allowed to return to work, one of the requirements for an urgent interdict.

He had cited “humiliation” and “loss of reputation”, she said.

But the interests of justice “far outweighs any harm that may be suffered by the applicant”.

Ntlemeza’s attorney could not be reached for comment.

Franny Rabkin
Franny Rabkin
News Editor, Mail & Guardian. Editor, Advocate. Former legal reporter at Business Day. Still obsessed with law and politics

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