South Africa

South Africa

Where there’s smoke, there are mirrors: #SAsMostComplicatedStoryYouShouldCareAbout, part two

Earlier this year, as senior graft-busting prosecutor Glynnis Breytenbach’s internal disciplinary hearing was underway at the National Prosecuting Authority’s offices in Silverton, we made a desperate attempt to get to the heart of the incredibly convoluted story and explain why regular South African’s should care about it. The hashtag #SAsMostComplicatedStoryYouShouldCareAbout was coined. Now Part Two of that complex soap opera is playing out in the antiquated, plush Palace of Justice in Pretoria, where lobby group Freedom Under Law is taking on the Richard Mdluli affair. MANDY WIENER has been sitting in the old jury box there. She tries to make sense of it all.

Richard Mdluli is the bogeyman. He has become the personification of all things perceived to be bad and corrupt about the country and the police service. He’s the guy people point to when they question cronyism, political protection and the abuse of state agencies by spooks for personal gain.

It’s a familiar quip from politicians who joke that when they make phone calls, they greet Mdluli before whoever it is they are speaking to. It’s whispered in the corridors of power that he knows where all the bodies are buried and has dirt on everyone. When his name is in a newspaper headline, the connotations are invariably negative by association.

However, many may not necessarily know exactly why. He’s not currently facing any criminal charges and has not been convicted of anything, although he is on suspension. He could argue that he’s been given a hard ride by the media and that his reputation has been tarnished.

He already reckons he’s the victim of a political conspiracy. The problem is, the whole bloody web around him is so complicated that it’s easier to give up reading and just assume he’s bad news. This should help you understand why civil society organisations like former Constitutional Court judge Johann Kriegler’s Freedom Under Law and prosecutors like Glynnis Breytenbach are fighting so hard to keep Mdluli far away from the levers of power.

Richard Mdluli is a career policeman who has worked his way through the ranks of the SAPS. He became the Station Commander in Vosloorus and was then appointed Deputy Provincial Commissioner in Gauteng. During the epic battle between the police and the Scorpions in 2007, Mdluli’s name featured in a plot by those allied to then Police Commissioner Jackie Selebi to have his prosecutor Gerrie Nel arrested on trumped-up charges.

Senior NPA official, Nomgcobo Jiba, who has been acting as the head of the NPA for the past year and a half, was suspended for her role in Nel’s peculiar arrest. Mdluli came to her rescue during her Labour Court fight against the NPA and miraculously produced secret spy tapes. These formed part of the same recordings that would later come to the rescue of President Jacob Zuma in his own battle with the NPA. Jiba’s suspension was lifted and she owed Mdluli one.

Just a few months after corruption charges against Zuma were abandoned thanks to the spy tapes, Mdluli was appointed as the head of the SAPS Crime Intelligence Unit.

That’s when the rot set in.

Mdluli set about declassifying a top-secret intelligence report which contained explosive allegations that then-National Commissioner, Bheki Cele, and a cabal of cabinet ministers, including Tokyo Sexwale, were part of a faction trying to oust Zuma. However, the real power struggle was taking place within the police, where Mdluli was orchestrating his own political survival. He even wrote a letter to Zuma complaining that there was a conspiracy against him and that senior police officers were plotting to frame him for murder.

In March 2011, Mdluli was arrested on the murder charge. It was a dusty old case dating back to 1999 involving a love triangle while Mdluli was still stationed at Vosloorus.

Oupa Ramogibe was killed while pointing out the scene of a previous attempt on his life. He was married to the mother of Mdluli’s love child, Tshidi Buthelezi. Investigators claimed that Mdluli had arranged for other cops, including one called ‘Killer’, to take out Ramogibe. Shortly after the arrest, it emerged that Mdluli was not appointed according to normal police protocol. Instead, it was claimed that the spy boss had been promoted by a panel of four cabinet ministers who hijacked the process, feeding into speculation that it was politically motivated.

Two months after Mdluli’s arrest on the murder charge, he was suspended by Commissioner Bheki Cele. A few months after that, a new case popped up and more charges were brought against Mdluli. These had to do with the alleged abuse of Crime Intelligence’s secret fund.

Mdluli, together with Crime Intelligence Chief Financial Officer, Solly Lazarus, allegedly looted the slush fund to buy cars, go on overseas jaunts, purchase furniture and do some home renovations. The prosecutor tasked with dealing with this particular case was regional head of the Specialised Commercial Crimes Unit, Glynnis Breytenbach. Meanwhile, in October 2011, Bheki Cele was suspended and Nhlanhla ‘Lucky’ Mkhwanazi temporarily took charge of the SAPS.

Out of the blue, in December 2011, the NPA dropped the corruption and fraud charges against Mdluli, setting off loud clanging alarm bells. The decision was taken by the head of the Specialised Commercial Crimes Unit, Lawrence Mrwebi. He would later claim that the matter should be dealt with by the Inspector General of Intelligence. Breytenbach, the prosecutor, found out about this and blew a fuse.

She was adamant Mdluli had a case to answer to and had to go to court. Two months later, the murder and kidnapping charges were withdrawn against Mdluli and it was decided that an inquest should be held instead. The decision was taken by the Director of Public Prosecutions in Johannesburg, Andrew Chauke. Mdluli’s suspension was lifted and he returned to his job at the SAPS, this time with increased authority and added power.

Reports surfaced that acting police chief Mkhwanazi was threatening to resign over the political interference in the decision to reinstate Mdluli and that the Inspector General of Intelligence, Faith Radebe, had also come under massive pressure from politicians because she believed the charges should be reinstated by the police. All indications were that Mdluli’s politician friends were rallying to protect him and to ensure he was restored to power so that he could in turn protect them.

Advocate Breytenbach was so incensed by what appeared to be political protection for Mdluli that she took on her bosses over the decision to withdraw the charges. In April 2012, Breytenbach was herself suspended. The official version from the NPA was that this was because of her handling of the Imperial Crown Trading/Sishen mining rights matter.

Breytenbach was adamant that she was sidelined by Jiba and Mrwebi in order to stop her prosecuting Mdluli. During her disciplinary hearing, her legal team argued that Mdluli was calling in the favour Jiba owed him – after all, he had rescued her during her own Labour Court fight when she had been suspended. It was suggested that Jiba and Mrwebi had scrambled to ensure Mdluli wouldn’t be prosecuted.

In May 2012, Mkhwanazi, the acting police chief, got his own back and re-suspended Mdluli. Lobby group Freedom under Law went to the North Gauteng in a bid to get an urgent interim order preventing Mdluli from being assigned any duties as a police officer. The court granted that order which effectively saw Mdluli prevented from doing his job until FUL’s application was heard. That is what is currently before the Palace of Justice in Pretoria and is the matter that Judge John Murphy is presiding over this week.

In the interim, Mdluli has remained on suspension from the SAPS. An investigation into the corruption and fraud charges against him has pretty much stalled, but those in the know say the case is ready to go to court, but for a lack of political will.

His SAPS disciplinary hearing is yet to take place. The inquest court largely cleared Mdluli of any involvement in Oupa Ramogibe’s murder and charges were not pursued against him. However, that court decision could be open to interpretation and has already been questioned by Judge Murphy.

What FUL is asking the North Gauteng High Court for this week is for an order that would see the NPA being forced to pursue the prosecution of Mdluli in a court of law and for the SAPS to proceed with a disciplinary hearing against him. This application is being opposed by the National Director of Public Prosecutions (who is technically still Jiba until the end of the month), the head of the SCCU, Lawrence Mrwebi, and Riah Phiyega, the current National Police Commissioner.

So all of that is the background. Here is why you should care.

In a constitutional democracy, we place our trust in those who are appointed to positions of authority at institutions such as the National Prosecuting Authority and the Police Service. We have to believe that when they make decisions, they are doing so with the principles of fair and equal justice in mind and that they are abiding by the law.

These individuals have the responsibility to be guided by their ethics and by their morality and to be honest. We have to trust that there is a separation of powers – that the politicians in the executive are not interfering in the work of the prosecutors. Freedom Under Law has gone to court on the basis that it is questioning the decision taken by senior prosecutors and police officers relating to Mdluli. It’s querying why Lawrence Mrwebi took a unilateral decision to withdraw the fraud and corruption charges without consulting anyone, why Andrew Chauke dropped the eighteen criminal charges including those of murder and kidnapping, and why Mdluli was curiously ‘un-suspended’ and then ‘re-suspended’ by Mkhwanazi.

The inference is that politics was behind it all.

If that is true, it would mean that we can’t trust, we can’t believe and we can’t have faith that all of those who are in positions of power are doing the right thing for the right reasons.

If we can’t trust them, then they have to be transparent and prove to us why they have taken the decisions they have and for what motivation. After all, it is these people who have the power to make decisions about who to prosecute, who to spy on and who to arrest.

In short, this is why FUL thinks it is important:

It believes the case is extremely important, not only because it relates to the fitness of a controversial senior police officer to occupy a position of vital importance (and great power and influence) at the very heart of the nation’s security system. More importantly, FUL contends, the case touches on crucial aspects of the rule of law, the role and duties of the NDPP and the Commissioner, and the demands of the Constitution for accountable, transparent, reasoned and rational exercise of their powers. In particular FUL challenges as irrational and unconstitutional the relevant decisions taken by the acting head of the SCCU, Advocate Lawrence Mrwebi (backed by the acting head of the NDPP, Advocate Nomgcobo Jiba). These unilateral decisions flew in the face of the unanimous, considered and expert opinion of the senior investigators and prosecutors who were steeped in the cases against General Mdluli.

But the lawyers for the NPA and the SAPS are making critically important arguments too. They’re attempting to convince the court that the principle of the separation of powers works both ways and the courts simply do not have the jurisdiction or authority to decide who should be prosecuted. Advocate Laurance Hodes SC, arguing on behalf of the NDPP, stressed that all internal processes should be exhausted first and it should be up to the head of the NPA to first decide on whether a prosecution will go ahead before a court can review it. He argued that if all political parties or civic organisations were to go to court to challenge decisions of the NPA to get back at their enemies, the justice system would be abused and would collapse.

Riah Phiyega’s lawyers will argue that as a matter of principle, the courts cannot intervene and instruct her to institute a disciplinary hearing against an employee and determine who should be the country’s Crime Intelligence head. This of course doesn’t necessarily mean that Phiyega is actually supporting Mdluli’s potential return to the position, but rather that she wants to have the authority to discipline him herself.

If Mdluli is not guilty of any of the allegations against him and he really is the victim of a political conspiracy, then we should be very concerned. It would mean that a faction within the SAPS and the NPA, with its own political motives, has concocted an elaborate campaign against him. This would mean that they too would have abused their power and the trust of the public and would have undermined the entire criminal justice system. He does have the right to be considered as innocent until proven guilty.

So while it may seem as though this entire complex saga is about a bad cop who is the bogeyman, it is really about much more than that. At the heart of it is whether or not we can have trust in those with authority to do their jobs properly and whether they will abuse that power entrusted to them for the wrong reasons. You should care because if we don’t hold those in authority to account, they will run rampant and trample on our democracy for their own personal and political gain. DM

Photo: Lt. General Richard Mdluli (Danielle Karallis for Rapport)


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