Mthandazo Ntlemeza might be safe for now but Judge Neil Tuchten did find on Tuesday that the Minister of Police should not have ignored or brushed aside judgments relating to the Hawks head in two other cases, and that lobby groups the Helen Suzman Foundation and Freedom Under law had “strong prospects” in their case to have the appointment reviewed.

The lobby groups submitted two applications: one, a temporary measure, for an interim interdict seeking the urgent suspension of Ntlemeza as he was unfit for office and would be likely to make decisions that were unlawful or that could result in irreparable harm.

The second part of the application, which will be heard at a later date, relates to the claim by the lobby groups that Ntlemeza’s appointment as head of the Hawks is unlawful and had been made without due regard to relevant considerations, including a judgment in March 2015 by Pretoria High Court Judge Elias Matojane who found that Ntlemeza had lied under oath and had been dishonest with the court. This was in a matter dealing with the unlawful suspension of former Gauteng Hawks head, General Shadrack Sibiya.

Judge Tuchten said that by taking the “incorrect” view and brushing aside Judge Matojane’s findings as irrelevant and inconsequential, Nhleko had “disabled himself from making a rational decision”.

In preparation for the case it emerged that in a Cabinet memorandum penned by Nhleko and requesting the executive to endorse the appointment of his preferred candidate, Ntlemeza, no reference was been made of Judge Matojane’s scathing assessment of the man.

It has also emerged that the selection committee, headed by Nhleko, and which considered applicants for the top job, did not deem it necessary that Ntlemeza complete the required competency test.

In his memorandum, Nhleko outlines how the documents considered by the minister and Cabinet in making the appointment were Ntlemeza’s curriculum vitae and a document containing the recommendation to Cabinet. This letter was not disclosed to the foundation on the basis of its alleged privacy and secrecy.

The foundation, in relation to Nhleko’s charge of “self-created urgency”, set out the sequence of events that resulted in the delays that had hampered its court challenge, pointing out that it was tardiness on the part of Minister Nhleko that caused this in the first place. The foundation had written to Nhleko on 2 November requesting the reasons and documents which had informed the decision to appoint Ntlemeza.

It took four months and a forced application under the Promotion of Access To Information Act before the Minister of Police responded to the foundation’s requests. Eventually information was received on the evening of 2 March 2016 and proceedings were then launched on 16 March.

In its application the Helen Suzman Foundation has further argued that Ntlemeza’s conduct in suspending KZN Hawks head Johan Booysen “reinforces the applicants’ primary contention in the founding affidavit that Maj-Gen Ntlemeza is, in fact, and when assessed objectively, not fit and proper to hold the office of the National Head, and poses a serious threat to the stability, reputation and lawful conduct of the criminal justice system. The risk of further harm should be mitigated without any further delay.”

The court began hearing arguments on the substantive merits of the case on Tuesday. The matter was stood down for further argument until Wednesday. DM

Photo: Police Minister Nkosinathi Nhleko, the Hawks head Berning Ntlemeza. (GovernmentZA)