Former Crime Intelligence chief Richard Mdluli and his co-accused Heine Barnard (former supply chain manager) and Solomon Lazarus (former chief financial officer of the State Security Agency) are facing charges of fraud, theft and corruption. The alleged crimes were committed between 2008 and 2012.

The charges relate to the “gross abuse” of a police intelligence slush fund.

Other allegations involve money spent on private trips to Singapore and China, the leasing of Mdluli’s private residence to the State to pay his bond and the personal use of witness protection property.

The State has tried unsuccessfully for over a decade to get the matter to go to trial. This case was first enrolled in 2011. The State says it is in the interest of justice, as well as of Mdluli and his co-accused, to have the case heard as soon as possible.

Mdluli is currently serving a five-year sentence handed down by the Johannesburg High Court in September 2020 after being convicted on kidnapping and assault charges that date back to 1998. His application for leave to appeal against the sentence was denied.

Mdluli and his co-accused appeared in the Pretoria High Court on Wednesday, where the State has applied to the court to put an end to the “unreasonable delays” in getting the matter to trial.

The State brought the application after Mdluli announced he would be reviewing a decision by the SA Police Service (SAPS) not to pay his legal bills.

However, according to an affidavit in support of the State’s application, dated 12 April 2022, Mdluli has yet to file the review despite learning that the SA Police Service had denied him funding almost four months ago.

Mdluli’s legal representative told the court they would not be filing replying papers. Instead, they would file papers when the matter is heard in June 2022.

On Wednesday, an affidavit deposed by Hawks Captain Mark McLean outlined that the delay in proceedings between October 2020 and 6 April 2021 can be attributed to Mdluli. The subsequent delays, from 6 April 2021 to 18 January 2022, related to Mdluli’s application for legal funding.

“Mdluli is yet to file a review application three months after learning that the SAPS refused his request for State funding. The continued delays have resulted in Barnard’s and Lazarus’ rights to a speedy trial being infringed and their legal costs are escalating.

“Witnesses are getting older and will be required to testify about occurrences that happened more than 11 years ago. One of the State witnesses and his family have been in witness protection since 2011,” McLean said.

Here’s a closer look at the background to the Mdluli matter:

1. Mdluli and Barnard were arrested on 21 September 2011 and 4 October 2011, respectively. On 17 November 2011, Mdluli’s legal representative made representation to the Directorate of Public Prosecutions and Head of the Special Commercial Crimes Unit seeking the withdrawal of the fraud and corruption charges.
2. It was decided to withdraw these charges and Mdluli’s representative was notified of this decision on 5 December 2011.
3. The case was subsequently withdrawn against the accused on 14 December 2011.
4. The decision to withdraw was taken on review on 17 April 2014 and in accordance with the order of the SCA, the matter was reinstated on the Specialised Commercial Crimes Court roll in Pretoria on 1 April 2015.
5. On 20 May 2015, Lazarus was joined as accused and the case was postponed to 6 July 2015 for disclosure of classified documents.
6. The court ordered the case struck from the roll, and that it only be placed on the roll again once the State had clarity about these documents so that the defence knows what the situation is.
7. The NPA, investigating officer and Ipid continued to engage with the SAPS to have the relevant documents declassified.
8. Only after the intervention by the National Director of Public Prosecutions on 8 July 2019 did then National Police commissioner Khehla Sitole inform the NDPP that he had granted approval for the declassification and disclosure of the relevant documents.
9. Following the declassification of the documents, the accused were summoned to appear in the Specialised Commercial Crimes Court in Pretoria on 27 August 2020.

Mdluli had to appear in the High Court in Palm Ridge on the same date and was summoned to appear on 17 September 2020, on which date he appeared in the Specialised Commercial Crimes Court.

On 9 October 2020, the State sent an email to Mdluli’s attorney, saying:  “We can be accommodated in the Gauteng High Court from 3 May 2020 onwards. We estimate that the trial will at least run up to the end of the term of 20 June 2020. Kindly confirm your availability and/or the availability of counsel on or before 30 October 2020 to enable us to finalise the High Court court before the next court date.”

The response from Mdluli’s legal representative on 9 October 2020 stated: “Kindly be advised that preliminary indications are that a number of pre-trial applications will be launched before the trial can commence.

“Amongst others, the said applications will seek to challenge the validity and or lawfulness of the search warrants and the effect of covert intelligence legislation on the eligibility of the accused to testify on convert matters and operations.”

However, to date none of the pre-trial applications were filed. The State said Mdluli had also refused to come to court on certain dates.

1. The State arranged for Mdluli to be requisitioned for 10 November 2020. He purportedly refused to attend court on the day and the case was postponed to 8 February 2021.
2. On 8 February 2021, Mdluli again refused to attend court. On behalf of Mdluli, the court was informed that they intended inter alia to bring an application that the State (the SAPS) pay for the legal representation of Mdluli’s choice.
3. The matter was postponed to 19 February 2021 and again he refused to attend court. The court was informed by Mdluli that consulting in prison was a challenge. The matter was postponed to 4 March 2021 to address the consultation issues. He was ordered to be brought to court to consult with his lawyers.
4. On 4 March 2021 he again refused to attend court, despite the court order. A warrant of arrest was issued and the matter postponed  t0 12 March 2021. He again failed to appear in court on this date.
5. The court ordered that the warrant of arrest be executed and the matter was postponed to 26 March 2021. Mdluli appeared on 26 March 2021 and the matter was postponed for an application in terms of Section 342A of Act 51 of 1977 by the prosecution.

Following all these no-shows by Mdluli, it was agreed that the accused would file his application for the SAPS to fund his legal costs within one month.

On 18 June 2021, there was still no decision by SAPS on whether they would pay for his legal costs, which resulted in further delays. The matter was then postponed to 20 July 2021, 7 September 2021, 23 November 2021 and 18 January 2022 for this purpose.

On 13 January 2022, the accused’s legal representative, Ike Motloung, was advised by the acting divisional commissioner, legal policy services: “That after perusal of the documents attach to the application, their office is of the view that the charges preferred against his client could not have been done in the execution of his duties, and thus it is not in the interest of the State nor the public interest, to provide legal representation at the state cost to his client.”

Motloung did not attend court on 18 January 2022 and the matter was postponed to 22 February 2022. On that date, Motloung informed the court that he had instructions to take the SAPS decision on review and the State indicated that they would bring an application to oppose this.

But two months later, on 11 April, the SAPS informed the State that no application for review was filed by Mdluli.

McLean underlined in his affidavit that Mdluli allegedly abused his official position and influence in the SAPS and Crime Intelligence to advance his private interests.

Mclean said the court should have regard for the fact that due to ongoing interference, the total delay in this matter was more than 10 years.

The pretrial conferences can only begin once the court has ruled on the State’s application for an end to the delays and that the matter be remanded for pretrial before 20 July. DM

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