The fact that Hawks head, Lieutenant-General Mthandazo Ntlemeza, still occupies his position as the highest ranking investigative police official in South Africa – in spite of a court ruling last week that his appointment was illegal and that he is unfit for office – is “constitutionally insufferable”, the Helen Suzman Foundation and Freedom Under Law have argued. In a counter-application filed in the North Gauteng High Court this week, HSF and FUL have asked that Ntlemeza be ordered to step down as a matter of urgency pending an appeal of a ruling by a full bench on March 17 that the Hawks head was found to be dishonest and duplicitous and had been irregularly appointed. By MARIANNE THAMM.
In their counter-application to the North Gauteng High Court, HSF and FUL argue that Minister Nathi Nhleko has lodged a “frivolous appeal” against the unequivocal ruling by Judges Mabuse, Kollapen and Baqwa on March 17 that Ntlemeza’s appointment be set aside. They charge that Nhleko is also abusing the court process in refusing to remove Ntlemeza in the meantime and that the Hawks head would suffer no harm in vacating the top slot, while continuing to earn his generous salary.
The counter-application by HSF and FUL has been brought against Minister of Police, Ntlemeza, the Directorate for Priority Crime Investigation (DPCI – The Hawks), the Cabinet of South Africa and the Minister of Justice and Constitutional Development.
Ntlemeza, HSF and FUL argue, cannot be permitted to continue to serve in this powerful position while a lengthy appeal process takes place and where “such damning findings have been made against him and where his actions have potentially far reaching and irreversible effects on the proper and lawful functioning of the DPCI”.
“Our constitutional democratic system cannot tolerate Lt-Gen Ntlemeza remaining in office a moment longer. The prospect of someone continuing to occupy such office who our courts have said lacks honour and integrity and who was at all times disqualified from being appointed in the highest office of the State is constitutionally insufferable,” said Kalim Muhammad Rajab on behalf of HSF and FUL.
Ntlemeza would suffer no irreparable harm should the court’s order be enforced and should an appeal court vindicate Ntlemeza and Minister Nhleko he would still be entitled to receive his full salary. If not then he would not be entitled to these as his appointment is irregular. The minister could, in the meantime, appoint an acting national head of the DPCI pending the outcome of the appeal, says HSF and FUL
Nhleko, a Zuma ally who has lost several court battles including the illegal suspension of IPID head Robert McBride, has consistently supported the “tainted” Ntlemeza. Ntlemeza has been a central figure in the over year-long hot but unsuccessful pursuit of Finance Minister Pravin Gordhan as well as former SARS executives, Ivan Pillay and Oupa Magashula.
The Hawks head was also implicated in court papers by former Gauteng Hawks Head Shadrack Sibiya as being instrumental in his [Sibiya’s] suspension due to his investigation and arrest of another Zuma ally, former Crime Intelligence head Richard Mdluli.
Charges of intimidation, kidnapping, assault with intent to commit grievous bodily harm and defeating the ends of justice have subsequently been reinstated against Mdluli and he is currently on trial in the South Gauteng High Court along with fellow accused Mthembeni Mtunzi.
The Hawks head has also been implicated in a damning affidavit by former IPID investigator Innocent Kuba who revealed that Ntlemeza had told him [Kuba] that Mdluli would protect him during an investigation that would implicate former Hawks Head Anwa Dramat. Dramat was later suspended (on allegations regarding the Zimbabwe illegal rendition case), resigned and was replaced by Ntlemeza. Charges of fraud against Kuba, McBride and fellow IPID head of investigations Matthew Sesoko were withdrawn in November 2016.
HSF and FUL in their counter-application also claim that whatever “damage” might have been caused to Ntlemeza’s reputation through various court actions, this was suffered “at the time that the relevant judgments [in the Sibiya matter and subsequent appeal] were published”.
There could also not be any suggestion that another suitable candidate, “a person of honour, integrity and ability”, could not be found to replace Ntlemeza in the interim.
HSF and FUL argue that the “facts in this case could not be more exceptional. The minister’s actions have created a constitutional crisis and bring the administration of justice into disrepute. The continued tenure of Lt-Gen Ntlemeza continues to threaten hundreds of investigations and the DPCI as an institution”.
A full court had ruled that there was no disputing Judge Matojane’s findings that Ntlemeza is mendacious and he could thus never be exonerated and his leave to appeal could thus not succeed. The counter-application points out that since his illegal appointment Ntlemeza has been particularly active in restructuring the DPCI and effecting fundamental changes of personnel within the unit.
“He has been involved in high-profile investigations and interrogatories with current ministers. Fundamental restructuring of the DPCI by Lt-Gen Ntlemeza thus necessarily affects the future functioning of the DPCI.”
In addition, says HSF and FUL, the public will never know whether there are investigations that the DPCI should have conducted but did not, based on the discretion of Ntlemeza. The fact that the head of the DPCI is invested with far-reaching discretionary powers heightened the need for the incumbent in this position to have good judgement and integrity.
“If an unlawfully appointed national head is retained in office, this has the potential to compromise ongoing investigations, risks instability and engenders dysfunction within the DPCI.”
Ntlemeza’s presence created a perception among the public and members of the DPCI that the unit was “vulnerable to executive interference or political influence”.
In their appeal lodged on Friday March 24, Ntlemeza and Nhleko argued that the court in the Sibiya appeal matter had no jurisdiction to rule on what was, they argue, essentially a labour dispute, that the court in the main application did not afford Ntlemeza an opportunity to deal with remarks with regard to his integrity and honesty and that the remarks by Judge Matojane were not backed up by any evidence.
HSF and FUL argue that these grounds “have limited prospects of success” and in so doing supported the granting of the application for Ntlemeza to vacate his office.
The matter was urgent, said the lobby groups, as the DPCI was an indispensible investigative organ “whose reach extends to the highest offices in South Africa, which must be given substantial protections to carry out its mandate to combat corruption and organised crime”.
HSF and FUL were seeking that legal costs, should their application be opposed by Ntlemeza and Nhleko, be borne by both men in their personal capacities, alternatively in their official capacities. DM
Photo: Police Minister Nathi Nhleko (GCIS), the Hawks head, General Ntlemeza (eNCA)
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