No good reason to drop Mdluli prosecution, inquiry hears

There was no good reason to withdraw fraud and corruption charges against former Crime Intelligence Head Richard Mdluli, Pretoria director of public prosecutions Sibongile Mzinyathi said on Wednesday.

Mzinyathi was testifying before the inquiry into the fitness for office of two of the National Prosecuting Authority’s most senior prosecutors: deputy national director of public prosecutions Nomgcobo Jiba and special director and head of the Specialised Commercial Crimes Unit (SCCU) Lawrence Mrwebi.

READ MORE: Mdluli case was not ready for prosecution, Mokgoro inquiry hears

Chaired by retired Constitutional Court Justice Yvonne Mokgoro, the inquiry was established by President Cyril Ramaphosa because the two had been criticised in a number of court judgments in political and sensitive court cases — some related to the withdrawal of the Mdluli matter.

Mzinyathi said although he was not directly involved in the Mdluli prosecution, he had been kept appraised and he was of the view that, when Mrwebi decided to withdraw the case from the roll, Mdluli had a prima facie case to answer. He said that on December 5 2011 Mrwebi had come to his office, with the Intelligence Services Act in hand.

Mrwebi said that he had received representations from Mdluli’s legal team and he knew that, in terms of the NPA Act, he needed to consult Mzinyathi. 

READ MORE: Cross-examination of Mdluli prosecutor set to continue at Mokgoro inquiry

But Mrwebi said he still had some research he wanted to do, said Mzinyathi, and the impression he was left with after the meeting was that Mrwebi was “still going to come back to me for further discussions”.

However, he was then sent a memo – dated 4 December, the day before their meeting – instructing the prosecution to withdraw the charges. He said the allegations against Mdluli were matters that had to be dealt with by the Inspector General of Intelligence (IGI) and were not for the police to investigate. 

He wrote a letter to Mrwebi saying that he disagreed with the decision, adding that he hoped it had not been conveyed to Mdluli’s lawyers yet. However when he and Glynnis Breytenbach —overseeing the prosecution from the Pretoria SCCU office — met with Mrwebi the following day, Mrwebi said a letter had already gone to Mdlui’s lawyers.

This was an embarrassment, he said. He did not want the prosecutor in the matter to then have to tell the presiding officer that there were two conflicting instructions re withdrawing the case and that the two were “at loggerheads”. To save that situation, they agreed that the matter would be withdrawn provisionally.

Evidence leader Nazreen Bawa SC then referred him to a letter he sent to Anwa Dramat on March 23 2012, In it he said that the decision on this matter was “final, and the matter is now closed”. Bawa asked Mzinyathi what he understood by the words “the matter is closed”. Mzinyathi said “if we say we close the matter, we withdraw the file and write “closed”, so the matter can go for filing”.

However under cross-examination by Mrwebi’s counsel Mervyn Rip SC, an alternative interpretation was suggested: that the “decision” was the decision to withdraw, but only provisionally, and investigate further; and that the “matter is closed” referred to the back and forth with the IGI.

“I hear you,” Mzinyathi, adding that where the letter elsewhere referred to “the matter” it was clear that he was referring to the Mdluli matter.

He agreed with Rip that there was “nothing wrong” with withdrawing a case provisionally while investigations continued. 

This article was amended for accuracy, to reflect that it was not Mdluli’s legal team’s representations that argued that the allegations against him fell within the domain of the IGI.  

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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