South Africa

South Africa

Helen Suzman Foundation vs Ntlemeza: Minister Nhleko tells court to respect separation of powers

Helen Suzman Foundation vs Ntlemeza: Minister Nhleko tells court to respect separation of powers

Minister of Police Nathi Nhleko and Hawks head Lieutenant-General Mthandazo Berning Ntlemeza have argued in court papers that a two-part application by the Helen Suzman Foundation and Freedom Under Law challenging Ntlemeza’s appointment is not urgent and that the judiciary should not interfere with the legislative and executive powers conferred on them by the SAPS Act. By MARIANNE THAMM.

In March 2015 Pretoria High Court Judge Elias Matojane found that Hawks head Lieutenant-General Mthandazo Ntlemeza had lied under oath and had been dishonest with the court in a matter dealing with the unlawful suspension of former Gauteng Hawks head, General Shadrack Sibiya. Since then, Ntlemeza’s name and alleged unscrupulous behaviour have emerged in another damning affidavit in a different matter.

On March 16, former Limpopo IPID investigator, Innocent Kuba, appearing with former IPID head Robert McBride on charges of fraud, perjury and defeating the ends of justice, filed an explosive affidavit implicating Ntlemeza and former Crime Intelligence head Richard Mdluli in a plot to remove former Hawks head, Anwa Dramat.

While the Pretoria High Court hearing the Helen Suzman Foundation (HSF) and Freedom Under Law (FUL) application to have Ntlemeza removed from his position on Wednesday will certainly not be considering Kuba’s allegations, these point to the controversial nature of the man tasked with heading the country’s top investigations agency and who has enormous powers vested in the office.

As such, argue the HSF and FUL, the head of the Directorate for Priority Crime Investigation should be an individual of impeccable integrity, capable of conducting investigations impartially and not at anyone’s political bidding.

And Lieutenant-General Ntlemeza is not that individual, say the lobby groups.

The Helen Suzman Foundation, whose offices were mysteriously raided just a few days after it had lodged the court application in March, has said that it aims to stop Ntlemeza from “exercising any power or discharging any function or duty as the Head of the Directorate of Priority Crime Investigation”.

One part of the interdict is being sought as a temporary measure pending the outcome of the Court’s consideration of the second part, whether General Ntlemeza’s appointment as head of the Hawks is indeed lawful or had been made with regard to relevant considerations.

In their Heads of Argument in the case both Minister Nhleko and Ntlemeza contend that the application by the HSF and FUL cannot be considered urgent as the lobby groups failed to approach the court immediately after 10 September, when Ntlemeza had been appointed.

Nhleko suggests that the urgency of the matter is “self-created if regard being had to the fact that the applicants have become aware of the basis for the application since the Sibya judgments on 26 May, 2015”.

They both further argue that the “cumulative effect (of) the relief sought by the applicants would threaten the principle of separation of powers” and that the “honourable court should be slow to interfere with the executive and legislative powers conferred upon them by the SAPS Act with regard to the appointment and removal of the head of the DPCI”.

Nhleko has also submitted that it is not for the court to determine “the fitness or otherwise of the second respondent [Ntlemeza] to hold the office of National Head of the DPCI through a judicial process because it is Parliament which has been conferred to initiate an inquiry and to suspend the National Head if there are grounds to do so”.

He said the court did not have the power to order the National Head to perform his duties in terms of the Act.

What the applicants want is suspension of the second respondent by the court in contravention of Chapter 6A of the SAPS Act,” said Nhleko.

The HSF, however, is arguing that neither part of its application was requesting the court to remove (or even suspend) the National Head on the basis of misconduct, incapacity or incompetence in the performance of his functions.

This application seeks to suspend (and ultimately set aside) the appointment of the National Director because the original appointment was unlawful. That is a power that lies in the exclusive domain of the judiciary. Neither the Minister nor Parliament is empowered to suspend or remove the National Director on the basis that he was unlawfully appointed to office.”

Outside of the court challenge it has emerged that in a Cabinet memorandum penned by Nhleko and requesting the executive to endorse the appointment of his preferred candidate Ntlemeza, no mention had 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, Nathi Nhleko updates South Africa on “Rogue Unit” Investigations during a media briefing at Imbizo Media Centre in Cape Town. South Africa. 02/03/2015. Siyabulela Duda (GCIS)

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