The former crime intelligence boss’s lawyers were in court for the second day running on Tuesday, this time for the same matter but against a different opponent. Mdluli’s facing life-threatening stress, the SAPS wants to try him on its own terms and Freedom Under Law just wants him out. By GREG NICOLSON
After lunch a female advocate briefly interrupted judge Ephraim Makgoba. She wanted to know when the case would wrap up and hers, up after the Mdluli matter, could begin. Makgoba quickly dismissed her and let her take the court papers to another courtroom. It seems the whole system is on hold for the “merry-go-round”, as the judge put it.
Representing Freedom Under Law and the civil society organisations that recently joined the application to stop Mdluli from performing policing duties until investigations and inquiries are completed, advocate Vincent Maleka was up first.
Maleka told the North Gauteng High Court that the Mdluli saga has become a game of “ping-pong” and his most recent suspension is irrelevant to FUL’s case. The suspension was signed by acting national police commissioner Nhlanhla Mkhwanazi but the acting commissioner might be replaced at any time and the suspension could be overturned, he said.
South Africans have a constitutional right to be served by both their elected officials and those in state institutions and, if there are allegations those officials don’t meet their obligations, the people have a right for those allegations to be investigated, said Maleka. He said there had been a public outcry over the Mdluli case and if he continues to work in the SAPS while allegations of murder, kidnapping, nepotism, corruption and fraud are outstanding it could do irreparable harm to the police.
Mdluli had an unlikely ally in Tuesday’s case as the acting national police commissioner joined him as a respondent. Strangely, Mkhwanazi’s advocate, Mandla Zulu, did not oppose any of the allegations against the former crime intelligence boss. They support his suspension, Zulu told a puzzled judge Makgoba, but they oppose the FUL interdict.
The matter is not urgent, argued Zulu, because the National Prosecuting Authority dropped charges in 2011 and Mkhwanazi has now suspended Mdluli. There’s no reason not to trust the acting police commissioner, he said. Police must hold an inquiry into a suspended member within 60 days and a court interdict would be pointless, Zulu added. He said the matter is between employer and employee and shouldn’t be dragged into years of litigation in the courts.
Mdluli’s advocate, Ike Motloung, tried to put up a more spirited defence. He argued the applicants want to jump in and interfere in institutional decisions with which they disagree.
“This will be an extremely dangerous precedent to set. The applicants are well funded. I can see it on their papers,” said Motloung, claiming that they have international donors. The judge responded, “But the courts will decide which are important.”
Sitting in the gallery was advocate Glynnis Breytenbach, who was suspended from the NPA allegedly for refusing to drop charges of fraud and corruption against Mdluli. In front of her was Zackie Achmat, whose Social Justice Coalition were co-applicants. Achmat laughed with the gallery as Makgoba questioned the respondents.
Motloung argued the interdict application is breaching Mdluli’s right to dignity and is a danger to his health as he suffers “life threatening” stress and hypertension. But don’t worry, he said, he’s okay to work. He claimed FUL’s submissions were heresy and part of an agenda pushed by the media that presumed Mdluli guilty until proven innocent.
Maleka called these nothing more than “dodgy” assertions and, though FUL used media reports in its application, none of them had been refuted by the police or Mdluli. And if Mdluli’s sick, he said, isn’t it better he takes a leave of absence?
Wrapping up the day, Makgoba said he considered the matter of paramount importance and would deliver judgment at 14:00 on Wednesday.
As the court cleared out, Achmat shared his thoughts on the day. “It was tragic that the SAPS had opposed to have Mdluli removed from any office temporarily until he faces charges or he’s cleared by some miracle.
“What it clearly showed is that the SAPS and through them government want absolute control over whether or not people who behave lawlessly and corruptly can be kept in their job or sacked on the basis of discretion rather than on the basis of the rule of law,” he said.
“The argument was simply this: if the commissioner decides that a corrupt police officer should stay in his job it’s not the right of the courts or anyone else (to question it).”
Achmat added: “The suggestion by Mdluli’s advocate that the real motive of the applicant FUL, and by extension us, is to remove the president from office. And I think he totally misconceives what our application is about…It is in fact about ensuring our police act lawfully and within the parameters of the Constitution – to protect people’s lives, their privacy and above all our freedom.”
Regardless of what happens today, the matter looks set to drag on. The parliamentary oversight committee on police will question the cops’ top brass next week on the Mdluli matter and it could end up stuck in the mire of the courts. Mdluli will appeal his suspension in the Labour Court on June 21. If the decision differs with that of the High Court, the rulings share equal weight and so the matter will probably be taken to another court.
But the High Court ruling will be a significant step for those who don’t want Mdluli behind a desk at the SAPS or wielding a gun. “You can see that I’m not going to sleep tonight,” Makgoba said before leaving the courtroom. He won’t be the only one. DM
Photo: Zackie Achmat's Social Justice Coalition have joint Freedom Under Law's urgent interdict application (Greg Nicolson/Daily Maverick)