South Africa

Ntlemeza: Former Hawks boss approaches ConCourt to challenge ‘involuntary termination’ – but it’s all about the money

By Marianne Thamm 23 October 2017

In 2015 when Mthandazo Berning Ntlemeza was irrationally and irregularly appointed as acting head of the DPCI by former Minister of Police, Nathi Nhleko, The Bern found himself scuttling up the ranks, promoted almost immediately to Lieutenant-General and earning a cool R1.6-million a year. Put out to pasture in September by new Minster of Police Fikile Mbalula, Ntlemeza exited SAPS at the lower rank of Major-General which he had held before his appointment. Ntlemeza has now approached the Constitutional Court seeking leave to appeal the SCA ruling setting aside his appointment. He would also like the bigger pension package he thinks he is entitled to. By MARIANNE THAMM.

That sound you hear emanating from under the bus is Mthandazo Berning Ntlemeza, disgraced erstwhile head of the country’s prime crime fighting unit, the Hawks, crawling out, application to the Constitutional Court in hand, in a last and desperate bid to get back his top job.

But is that really what The Bern is up to?

A close reading of Ntlemeza’s notice of application filed with the ConCourt on 18 October reveals a more practical reason for this, his umpteenth attempt at getting around the law.

A bigger pension package.

On the surface it may appear that Ntlemeza is appealing a 15 September 2017 SCA ruling dismissing his application for leave to appeal a 14 June 2017 judgment of a full bench of the North Gauteng High Court and granted on 17 March 2017.

The March ruling that found Ntlemeza “lacks integrity and honour”. The former Hawks head is also seeking to appeal the dismissal of an appeal by the SCA with regard to an enforcement order granted by the North Gauteng High Court court on 12 April 2017.

So many appeals, so little time.

In September the SCA ruled, “The implications of the court order are that: 1. The petition against the order of March 17 2017 that set aside General Ntlemeza’s appointment as national head: DPCI has been dismissed. 2. His employment contract has also been set aside and should be treated as if it [was] never obtained.”

And it is this that has essentially driven Ntlemeza to file a notice of appeal with the Constitutional Court six months after his “involuntary termination” from his 36-year career in SAPS. Now he is seeking an order directing the Third Respondent, the current Minister of Police, Fikile Mbalula, who personally and unceremoniously ousted Ntlemeza from the directorate’s head office in Pretoria in April this year, to “reinstate the Applicant [Ntlemeza] as the National Head of the DPCI on terms and conditions not less favourable to those which existed prior to the purported termination of services of Applicant in the South African Police by the Third Respondent.”

Ntlemeza has also said he would like the court to order Mbalula “to pay back whatever monies… deducted from the salary and/or pension benefits in the implementation of the enforcement order granted by the court on 12 April 2017.”

If the court refuses this, then The Bern wants the judges to declare that he is “entitled to the official rank of Lieutenant-General, all emoluments and benefits which should have accrued to him but for the wrongful premature termination of his services in the SAPS” .

The first and second respondents in Ntlemeza’s notice of application to the ConCourt are the Helen Suzman Foundation and Freedom Under Law who fought a long and costly battled to ultimately successfully challenge the legality of Ntlemeza’s appointment to the top job by Nhleko.

Oh, and Ntlemeza wants HSF and FUL to pay his legal costs.

Until Mbalula’s appointment, Ntlemeza, acting with the protection of Nhleko who had been a co-applicant in the Hawks head’s bid to appeal the 17 March ruling by the high court, had felt dangerously emboldened.

So much so that an acrimonious exchange of letters between Ntlemeza and NPA head Shaun Abrahams in relation to various charges Ntlemeza had tried to make stick against former Minster of Finance Pravin Gordhan as well as former SARS deputy commissioner Ivan Pillay revealed just how far The Bern had overstepped his mandate.

The Hawks “investigation” of Gordhan was so shoddy the directorate failed to obtain a publicly available exculpatory memorandum by SARS deputy director of law, Vlok Symington, and which later led to Abrahams having to withdraw fraud charges against Gordhan, Pillay and former commissioner Oupa Magashula.

The exchange between Ntlemeza and Abrahams began on 18 October 2016 after Abrahams had asked the Hawks to make representations to the NPA about the charges against Gordhan, Pillay and Magashula.

When Ntlemeza learned through the media that Abrahams had received representations from Pillay and Magashula he shot off a stiff memo asking, “in this regard we would like to enquire whether these media reports are true and if so why you did not disclose to us that you received those representations; request us to make our input as the investigative agency responsible for this matter and clearly a person relevant in terms of Section 22 of the NPA Act; furnish us with a copy of the representations you received to enable us properly to consider them when we make our input?”

Ntlemeza admonished Abrahams, telling him that in his “considered view” the NPA’s actions “are contrary to the imperatives of section 41 (1) h of the Constitution which you dealt with at length in announcing the decision that the accused are to be charged with fraud some weeks ago”. He then accused Abrahams of not acting in “good faith on the evidence that we have gathered as an investigative agency in the matter.

Rather it seems that you make this decision based on the noise by politicians, civil society lobby groups and the media sympathetic to the accused,” Ntlemeza ventured.

And then the Hawks head tried to tell Abrahams how to do his job (though, haven’t we all at some point?) ending his email with, “we think it would be improper for you as NDPP to stall or withdraw the prosecution” and accusing him of “acting in bad faith”.

To which Abrahams tetchily replied, “I find the tone of your aforementioned letter extremely disconcerting and contrary to the spirit espoused in the provision of section 41 of the Constitution” and informing Ntlemeza that power to institute criminal proceedings on behalf of the State “is constitutionally entrenched and vested in the National Prosecuting Authority.” (You go, Shaun).

He told Ntlemeza bluntly that he had overstepped his legal mandate in attempting to advise the NPA on how to proceed with the prosecution/or not.

With regard to the Symington memorandum Abrahams wrote to Ntlemeza, “kindly advise me how did it come about that the memorandum of Mr Symington, by way of example, only surfaced on 14 October 2016 when Freedom Under Law and the Helen Suzman Foundation wrote to me?”

Ntlemeza, who will turn 61 in on 12 November, was 60 when he was appointed by Nhleko in 2015 for a minimum seven-year term. This would have meant that Ntlemeza would have reached the mandatory retirement age while still serving out his contract. This in itself is contrary to Section 17CA (15) of the Police Services Act which requires a resolution to retain the National Head or the Deputy Head of the Directorate beyond the age of 60. But this is just another aside that has not yet surfaced in the labyrinthine saga of Mthandazo Ntlemeza’s rise and fall.

In his 97-page founding affidavit to the Constitutional Court Ntlemeza sets out his “unblemished career”.

The judgment of the court [high court] held that I am a dishonest person and, therefore, unfit to remain in the official position of the National Head of the DPCI. This finding by the Court constitutes a profound blemish to my loyalty and lengthy service in the SAPS.”

Ntlemeza says it was these findings that have resulted in his demotion “from the official rank of Lieutenant-General to that of Major-General, which affects my social standing and pension benefits as a retiree”.

He maintains that his “wrongful involuntary retirement” interferes with his constitutional right to pursue “my occupation as a policeman in the SAPS”.

The setting aside of his appointment, maintains Ntlemeza, “amounts to interference with the doctrine of the separation of powers. The decision interfered with the powers of the Minister to appoint the National Head of DPCI particularly the factors that the Minister was obliged to take into consideration”.

Ntlemeza in his affidavit to the ConCourt attempts to pick apart the judgment by Judge Elias Matojane in 2015 in the Sibiya matter that Ntlemeza had been a dishonest witness. Ntlemeza maintains Judge Matojane had never afforded him an opportunity to “deal with the accusations”.

Pleading with the court, Ntlemeza says that his career as a policeman “is now entirely in the hands of this court. I have served my country faithfully, patriotically and with distinction for a period of more than 35 years. The decision of the court was a devastating blow not only to me and my family but also the country as a whole”.

And then finally, the tear-jerker, “I now find myself inadequated [sic] with very low self-esteem and a perpetual blemish. The reputation I have built over the years without a blemish has not been shuttered [sic] at the time when I am in the afternoon of my career as a policeman.”

The wheels on the bus go round and round. DM

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