Freedom Under Law v National Director of Public Prosecutions and Others (26912/12) [2013] ZAGPPHC 271; [2013] 4 All SA 657 (GNP); 2014 (1) SA 254 (GNP); 2014 (1) SACR 111 (GNP) (23 September 2013)

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[2013] ZAGPPHC 271
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Freedom Under Law v National Director of Public Prosecutions and Others (26912/12) [2013] ZAGPPHC 271; [2013] 4 All SA 657 (GNP); 2014 (1) SA 254 (GNP); 2014 (1) SACR 111 (GNP) (23 September 2013)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
CASE NO. 26912/12
DATE:23/09/2013
In the matter between:
Freedom Under Law
….....................................................................................
Applicant
And
The National Director of Public Prosecutions
….......................................
First
Respondent
The National Commissioner: South African
…..........................................
Second
Respondent
Police Service
The Head: Specialised Commercial Crime Unit Third
…..........................
Respondent
The Inspector-General of Intelligence
….......................................................
Fourth
Respondent
Richard Naggie Mdluli
…...................................................................................
Fifth
Respondent
Minister of Safety and Security
…...................................................................
Sixth
Respondent
JUDGMENT
Murphy
J
1.
This application is a matter of public interest and national
importance on account of it raising significant issues of propriety,

accountability and justifiable conduct in the governance of the
Republic. The main issue is whether certain decisions made by the

various respondents to withdraw criminal and disciplinary charges
against the fifth respondent, Lieutenant-General Richard Mdluli

(“Mdluli”), the Head of Crime Intelligence within the
South African Police Service (“SAPS”), were unlawful.
2.
The applicant, Freedom under Law (“FUL”), a public
interest organisation, seeks an order directing the National
Prosecuting Authority (“the NPA”) to reinstate several
withdrawn criminal charges, (including murder, attempted murder,

kidnapping, assault, fraud and corruption), against Mdluli. It also
seeks orders directing the National Commissioner of SAPS (“the

Commissioner”) to reinstate withdrawn disciplinary charges
against Mdluli arising from the same alleged misconduct.
3.
FUL is a non-profit company as contemplated in section 10 of the
Companies Act.
1
It was established in 2008 and has offices in South Africa and
Switzerland. It is actively involved
inter
alia
in the promotion of democracy, the
advancement of and respect for the rule of law and the principle of
legality as the foundation
for constitutional democracy in Southern
Africa. Its board of directors and international advisory board are
made up of respected
lawyers, judges and role players in civil
society in various parts of the world.
4.
Dr Mamphela Ramphele, the deponent to the founding and supplementary
affidavit, is a member of the international advisory board
of FUL and
was previously Vice-President of the World Bank in Washington and
Vice-Chancellor of the University of Cape Town. She
was a universally
recognised leader of the Black Consciousness Movement in the struggle
against apartheid and is currently President
of Agang, a new
political formation in South Africa. The deponent to the replying
affidavit is the chairperson of the board of
FUL, Justice Johann
Kriegler, a retired judge of the Constitutional Court, who in 1994
served as Chairperson of the Independent
Electoral Commission
overseeing the first democratic election in South Africa.
5.
Both the Constitutional Court (“the CC”) and the Supreme
Court of Appeal (“the SCA”) have in the past
recognised
the right of FUL to act in the public interest in terms of section 38
of the Constitution in relation to infringements
of the Bill of
Rights.
2
FUL has on occasion also been admitted by the courts as
amicus
curiae
in important cases involving
constitutional matters.
6.
These review proceedings, brought in terms of Part B of the Notice of
Motion, challenge the decisions of the first, second and
third
respondents to withdraw the criminal and disciplinary charges that
were pending against Mdluli who, though currently interdicted
by this
court from performing his duties, remains the Head of Crime
Intelligence within SAPS; and, as stated, are aimed at reinstating

the criminal and disciplinary charges forthwith. The present
proceedings were preceded by an urgent application, in terms of Part

A of the Notice of Motion, for an interim order interdicting Mdluli
from carrying out his functions and the Commissioner from assigning

any tasks to him pending the finalisation of the review proceedings.
The interim order was granted by Makgoba J on 6 June 2012.
7.
The first respondent is the National Director of Public Prosecutions
(“the NDPP”), the head of the NPA. The NDPP
is appointed
by the President of the Republic and invested by section 179(2) of
the Constitution and Chapter 4 of the National
Prosecuting Authority
Act
3
(“the NPA Act”) with the powers, functions and duties to
institute criminal proceedings on behalf of the State and
to carry
out any necessary function and duty which is incidental thereto. At
the time these proceedings were launched, the office
of the NDPP was
vacant as a consequence of the decisions of the SCA and the CC
finding the appointment of the previous incumbent,
Advocate Simelane,
to be unconstitutional. During the period relevant to these
proceedings, the position was occupied by Advocate
Nomgcobo Jiba, who
served as the Acting NDPP until the recent appointment of Mr Nxasana
as NDPP by President Zuma.
8.
The second respondent is the Commissioner, who in terms of the
relevant legislation is the head of SAPS. The Commissioner withdrew

the disciplinary charges against Mdluli and reinstated him as Head of
Crime Intelligence in SAPS. Section 207(2) of the Constitution,
read
with the relevant provisions of Chapter 5 of the South African Police
Services Act
4
(“the SAPS Act”) and the Regulations made in terms
thereof, oblige the Commissioner to ensure that members of SAPS

diligently fulfil their duties to prevent, combat and investigate
crimes, maintain public order, protect and secure the inhabitants
of
the Republic, and uphold and enforce the law of the land. The
Commissioner and his or her provincial or divisional subordinates

have the duty to institute and prosecute disciplinary action against
any member of SAPS who is accused of and charged with misconduct
and
to suspend from office such a member, pending the outcome of
disciplinary proceedings.
5
9.
When these proceedings commenced, the office of the Commissioner was
occupied by Lieutenant-General Nhlanhla Mkhwanazi (‘the
Acting
Commissioner”), who was serving in an acting capacity,
following the suspension of the former Commissioner, General
Bheki
Cele, on grounds of alleged impropriety. Subsequent to the
commencement of these proceedings and the ultimate dismissal of

General Cele, President Zuma appointed General Mangwashi Phiyega as
Commissioner. The impugned decisions of the Commissioner withdrawing

disciplinary charges and reinstating Mdluli in his position were
taken by Lieutenant-General Mkhwanazi.
10.
The third respondent is Advocate Lawrence Mrwebi, (“Mrwebi”),
a Special Director of Public Prosecutions, and the
head of the
Specialised Commercial Crimes Unit (“SSCU”) within the
NPA. It was he who took the decision and gave instructions
to
withdraw charges of fraud and corruption against Mdluli. Other
charges of murder, attempted murder, kidnapping, intimidation
and
assault were withdrawn by Advocate Chauke (“Chauke”),
Director of Public Prosecutions (“DPP”) for South

Gauteng, who has not been cited as a party, it having been deemed
sufficient to cite the NDPP as titular head of the NPA to whom
Chauke
is accountable.
11.
The fourth respondent is Ambassador Faith Radebe, the Inspector
General of Intelligence (“the IGI”), appointed in
terms
of section 7 of the Intelligence Services Oversight Act.
6
She is the only respondent not to not to oppose the application and
has filed a notice to abide.
12.
The fifth respondent, Mdluli, did not actively oppose the relief
sought in Part B of the notice of motion. He filed an answering

affidavit opposing the relief sought in Part A of the notice of
motion. He however did not file further opposing papers and was
not
represented at the hearing before me.
13.
The sixth respondent, the Minister of Safety and Security, was joined
in the proceedings to give effect to the interim order
interdicting
the assignment of tasks to Mdluli pending the finalisation of the
review. He has joined the Commissioner in opposing
the application.
14.
In sum, FUL seeks to review and set aside four decisions in relation
to Mdluli: the decision taken by Mrwebi on 5 December 2011
to
withdraw the corruption and related charges; the decision taken by
Chauke on 1 February 2012, to withdraw the murder and related

charges; the decision taken by the Acting Commissioner, on 29
February 2012, to withdraw the disciplinary proceedings; and the

decision, of 27 or 28 March 2012, to reinstate Mdluli as the Head of
Crime Intelligence within SAPS. It also seeks an order directing
that
the criminal and disciplinary charges be immediately re-instated and
prosecuted to finalisation, without delay.
Preliminary
evidentiary and procedural issues
15.
The background facts giving rise to the review are for the most part
common cause. However, in its founding affidavit FUL conceded
that it
was compelled by force of circumstances in bringing the application
to rely on hearsay statements reported in the media
and elsewhere. It
accordingly made a general application for any hearsay evidence to be
admitted in the interests of justice in
terms of section 3 of the Law
of Evidence Amendment Act.
7
It based the application on five broad considerations: the relevant
source documents relating to the decisions were inaccessible
as they
are under the control of the respondents; some of the statements have
been reported in the media and have not been repudiated
by the
respondents; the impugned decisions were taken without any public
explanation in violation of the constitutional obligation
of
transparency, openness and accountability; the review deals with
subject matter of significant public interest; and the respondents

would suffer no material prejudice by the admission of the hearsay,
with any prejudice being outweighed by the public interest
in proper
justification of the decisions.
16.
In motivating the admission of the evidence, FUL did not identify the
specific statements upon which it hoped to rely. Nonetheless,
it is
evident that it had in mind a range of statements made in certain
newspaper articles, as well statements and reports made
by members of
SAPS and the NPA (in particular Colonel Kobus Roelofse and Colonel
Peter Viljoen of the Directorate Priority Crime
Investigations in
Cape Town, the Hawks; and Advocate Glynnis Breytenbach of the NPA)
who investigated the allegations against Mdluli
but were inhibited by
institutional constraints and perceived conflicts of interest from
deposing to confirmatory affidavits.
17.
In the answering affidavits filed by the NDPP and the Mrwebi, the
hearsay evidence was for the most part dealt with in general
terms
without any particular statement being objected to. The Commissioner
largely avoided dealing with the merits of the factual
allegations in
relation to the decisions, raised mainly technical defences and
objected to the hearsay in general terms.
18.
In reply, FUL reiterated the point that the problem of hearsay in
most respects would have fallen away had the NDPP and the

Commissioner taken the court into their confidence by making full and
frank disclosure regarding the Hawks investigation and by
consenting
to their employees testifying in these proceedings. Instead, it
alleged, the deponents, in violation of their constitutional

obligations of transparency and accountability, strained to withhold
vital information in their possession. FUL therefore submitted
that
it is not open to the respondents to seek to have the evidence
disallowed on the basis that it is hearsay when they have declined
to
fulfil their obligation to provide it.
19.
The dispute between the parties about hearsay, delineated as it is in
such general terms, is frankly much ado about not a great
deal and
not especially helpful in deciding any disputes of fact. Because
evidence was sourced from other proceedings in which
evidence was
given under oath, most of the relevant factual issues have become
less contentious. And where there are factual disputes
they must be
resolved by reference to the principles in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
8
For the reasons put forward by FUL, I will adopt a generous approach
.
The hearsay nature of any statements allowed
as evidence in the interests of justice, and which form the basis of
averments of either
party, will nonetheless influence the
determination of the veracity, probability, reliability and ultimate
cogency of the averments.
20.
FUL complained furthermore that the respondents have, through their
conduct, delayed and frustrated the prosecution of the review.
Each
of the first to third respondents was called upon, in terms of Rule
53 of the Uniform Rules of Court, to file a record of
decision, and
reasons, justifying his or her decision under attack. Each of them
failed to file a record timeously or on request.
FUL was compelled to
serve Rule 30A notices, upon which the first and third respondents
eventually filed incomplete records. FUL’s
attorney addressed a
letter to the state attorney on 25 July 2012 requesting a complete
record of decision itemising twelve identified
items that had not
been disclosed, including the representations made to the NDPP by
Mdluli requesting the withdrawal of charges,
communications with the
IGI and the Auditor General to whom the allegations of misconduct had
been referred for investigation,
representations made by Advocate
Breytenbach to Mrwebi recommending that the charges not be withdrawn
and so on. The request was
not heeded. FUL also had to bring an
application to compel production of the Commissioner’s record.
Even then an incomplete
record was delivered.
The Acting Commissioner filed a record comprising only two letters
notifying Mdluli of the withdrawal of the disciplinary charges
and
the upliftment of his suspension.
21.
The respondents’ failure to comply fully with their obligations
to file complete records of decision undermined FUL’s
ability
to prosecute the review and has meant that it has had to rely on
evidence put up by itself, sourced from other proceedings
in which
the respondents were involved, in particular those involving the
suspension and discipline of Advocate Breytenbach, a
Senior Deputy
DPP of the NPA who doggedly insisted on the prosecution of Mdluli. On
30 April 2012 the NDPP suspended Breytenbach
pending the outcome of
an investigation into a complaint made against her in an unrelated
matter some six months before her suspension.
Breytenbach has
contended in the other proceedings that the complaint was spurious
and the real reason for her suspension was the
stance she took in
relation to the prosecution of Mdluli. She challenged her suspension
by way of an urgent application to the
Labour Court, which was struck
from the roll for want of urgency. She was ultimately cleared of all
charges (additional charges
having been preferred against her after
her suspension) in a disciplinary hearing held under the auspices of
an independent chairperson.
In the absence of a complete record of
decision, FUL has relied on the affidavits filed in the Labour Court
application and the
transcript of the cross examination of NPA
witnesses in the disciplinary hearing to supplement its evidence.
22.
The failure to file complete records timeously contributed to a delay
in the proceedings. The review in terms of Part B of the
Notice of
Motion was heard almost two years after it was first instituted.
Throughout that time, Mdluli remained suspended on full
pay. Despite
the incomplete records of decision, FUL filed its supplementary
founding affidavit on 8 October 2012, and a further
supplementary
founding affidavit, necessitated by the paucity of the records filed
and by further documents becoming publicly available,
on 14 March
2013. It meant that the respondents had to file answering papers by
no later than 02 May 2013. None of the respondents
filed answering
papers in the review by that date.
23. Ultimately the Deputy Judge President (“the
DJP”) directed the respondents to file answering papers by 24
June 2013,
to enable the matter to be heard on 11 and 12 September
2013. Even then, the second and sixth respondents filed their
answering
papers only on 25 June 2013, and the first and third
respondents filed theirs on 4 July 2013 – nine court days late.
The
NDPP and Mrwebi in addition did not file their heads of argument
on 12 August 2013 as directed by the DJP, preferring to do so a
month
late on 9 September 2013, two days before the hearing, much to the
inconvenience of the court and the other parties. The
respondents
filed additional affidavits in the afternoon of the day before the
hearing. Despite being ambushed in this way, the
applicant did not
object to their admission, no doubt because it preferred not to have
the matter postponed. I indicated to the
parties that the
creditworthiness of the averments made in the late filed
supplementary affidavits would have to be assessed in
the light of
the applicant not having had a right of reply to them. It was agreed
by all parties to proceed on that basis.
24.
The reasons for the various delays, and late filing, are sparse and
mostly unconvincing. However, in the interests of justice
I was
persuaded that the matter should proceed without further delay and
condoned the non-compliance with the rules and directives
of the DJP.
Suffice it to say that the conduct of the respondents is unbecoming
of persons of such high rank in the public service,
and especially
worrying in the case of the NDPP, a senior officer of this court with
weighty responsibilities in the proper administration
of justice. The
attitude of the respondents signals a troubling lack of appreciation
of the constitutional ethos and principles
underpinning the offices
they hold.
25.
FUL submitted that the respondents’ conduct in delaying the
proceedings, their lack of transparency and their attitude
to
disclosure and the admission of any hearsay evidence gives rise to an
inference that they lack adequate justification for the
decisions at
issue. The legitimacy of that submission is borne out by the analysis
which follows.
The
facts
26.
As stated, the facts giving rise to the application are for the most
part common cause. Mdluli joined SAPS on 27 August 1979.
He rose
through the ranks and was finally appointed as the Head of the Crime
Intelligence Division of SAPS on 1 July 2009. The
position is one of
the senior leadership positions within SAPS and in the intelligence
community of the state. The incumbent exercises
complete control over
all surveillance that any division of SAPS carries out in any
investigation, and has access to highly sensitive
and confidential
information, and to the funds making up the Secret Service Account
(“the SSA”). The position calls
for an official with an
exemplary record of honesty, discretion and integrity.
27.
On 31 March 2011, Mdluli was arrested and charged with 18 counts,
including murder, intimidation, attempted murder, kidnapping,
assault
with intent to do grievous bodily harm, and with defeating the ends
of justice. These charges alleged that on 17 February
1999 Mdluli was
party to the unlawful and intentional killing of Mr Tefo Ramogibe,
who at the time was married to Ms Tshidi Buthelezi,
a former lover of
Mdluli. The charges of attempted murder, kidnapping etc. make
allegations that Mdluli and persons associated
with him brought
pressure upon the relatives and friends of Ramogibe by violence,
kidnapping and other threatening means with the
aim of bringing the
relationship between Ramogibe and Buthelezi to an end. Ramogibe was
shot dead during a pointing out while in
the company of SAPS officers
from Vosloorus Police Station. The pointing out was held ostensibly
for the purpose of gathering evidence
in relation to a case of
attempted murder opened by Ramogibe at the Vosloorus Police Station a
few days previously. At the time
Mdluli was Branch Commander of the
Detective Branch at Vosloorus. Although Mdluli was a suspect in the
investigation into the murder
and attempted murder of Ramogibe, he
was not arrested on the charges and the matter did not proceed to
trial. Much of the original
docket and certain exhibits have since
been lost or have disappeared.
28.
Information about the discontinued investigation surfaced shortly
after Mdluli was promoted to Head of Crime Intelligence in
late 2009.
In light of the seriousness of the charges and on the weight of the
evidence, the then Commissioner, General Cele, after
following due
process, suspended Mdluli from office on 8 May 2011 and instituted
disciplinary proceedings against him. Mdluli is
of the opinion that
the allegations have re-surfaced as part of a conspiracy against him
by those opposed to his promotion to high
rank. In a letter dated 3
November 2011, addressed to President Zuma, the Minister of Police
and the Acting Commissioner, Mdluli
alleged that Commissioner Bheki
Cele, and other senior officers, Generals Petros, Lebeya and Dramat
were “working together
against” him. In the letter he
tactlessly stated:
“
In the event that I come back to work, I will
assist the President to succeed next year”
He
did not explain how he would assist the President, but it is
reasonable to assume that he had in mind the conference of the
governing party in 2012 at which President Zuma was re-elected as
party leader for a second five year term. His entreaty to the

President implies that Mdluli believed he had it in his gift to use
his influence and the means at his disposal to the advantage
of the
President. The Minister later responded by causing the allegations of
conspiracy to be investigated by a special task team
which ultimately
found them to be baseless.
29.
Mdluli made various appearances in court on the murder and related
charges. The matter was postponed to later dates without
Mdluli being
asked to plead to the charges.
30.
In late September 2011 Mdluli was arrested and charged on further
charges of fraud, corruption, theft and money laundering (“the

fraud and corruption charges”). The charges relate to the
alleged unlawful utilization of funds from the SSA for the personal

benefit of himself and his spouse. Mdluli was brought before the
Specialized Commercial Crimes Court in Pretoria and granted bail.
He
was not asked to plead to the charges. The case was postponed to 14
December 2011.
31.
The investigation of these charges was conducted by Colonel Viljoen
of the Hawks who worked in conjunction with Advocate Smith
of the
Specialised Commercial Crimes Unit (“the SCCU”). Smith
applied for a warrant for the arrest of Mdluli on 1 August
2011. The
application was authorised by the magistrate on 6 September 2011, and
executed on 20 September 2011.
32.
The evidence in relation to the fraud and corruption charges is
derived from an affidavit made by Viljoen in support of the

application for the warrant of arrest of Mdluli and a report from
Colonel Roelofse. Neither officer has deposed to an affidavit
in
these proceedings on the grounds of conflict of interest. Strictly
speaking their evidence is hearsay. However, none of the
respondents
deny the averments in relation to the nature of the charges or their
investigation, and they may be accepted to be
common cause.
33.
The charges allege that Mdluli received an unlawful gratification in
an approximate amount of R90 000 when he used the
funds of the
SSA to acquire two vehicles supposedly for covert use, but which were
recovered from his wife at their home in Cape
Town. As part of the
transaction, he is alleged to have traded in his own vehicle, which
was valued at about R90 000 less
than the amount Mdluli owed as
outstanding instalments under his credit agreement. The purchase of
the new vehicles, apparently
for the use of himself and his wife, was
allegedly done in such a manner that discounts payable to the Secret
Service were applied
for Mdluli’s personal benefit and
extinguished his obligation to pay R90 000 to his credit
provider.
34.
The charges thus essentially allege that Mdluli abused state
financial resources for private gain for his and his wife’s

benefit. The SSA is controlled by the crime intelligence unit over
which Mdluli exercises control. The charges are therefore serious,

impacting upon the proper administration of justice and control of
state resources, and raise the question of Mdluli’s fitness
for
his position.
35.
In his answering affidavit filed in the Part A proceedings, Mdluli
dealt mainly with procedural issues related to his suspension,
his
constitutional right to be presumed innocent, attacks on his
integrity in the media, the alleged conspiracy against him and
the
leaking of classified information. Although expressing doubt about
the sufficiency of the evidence against him, he did not
address the
specifics of the allegations made in respect of the various criminal
charges in any detail or disclose his defence
in relation to them.
36.
The legal representatives of Mdluli addressed, and delivered by hand,
written representations to the NDPP on 26 October 2011.
They were not
disclosed by the respondents, as one might have expected, as part of
the Rule 53 process. They are annexed as part
of Annexure GB 10 to
the affidavit of Breytenbach filed in the Labour Court proceedings.
The opening paragraph reads:
“
We hereby make representations to you as to why
you should review the preference of charges against our client Lt Gen
Mdluli and
possibly withdraw the charges against him, as proceeding
against him is less likely to result in a conviction on any of the
charges
preferred against him”
The
Acting NDPP, Advocate Jiba, made no mention of these representations
in her answering affidavit. Her scant averment on the issue
is to the
effect that “the decisions” of the Special DPP and the
DPP who instructed the charges to be withdrawn “have
not been
brought to my office for consideration in terms of the regulatory
framework”; the implication of her statement being
that she has
made no decision in relation to the representations.
9
37.
The representations contend for the most part that the charges arose
from a conspiracy against Mdluli by fellow officers and
others who
disapproved of his promotion.
38.
Written representations in relation to the fraud and corruption
charges, dated 17 November 2011, were delivered by hand to Mrwebi
in
his capacity as a Special DPP and the head of the SCCU. They record
that similar representations, presumably in relation to
the murder
and related charges, had been made to Chauke, the DPP South Gauteng.
In the representations to the Special DPP, Mdluli’s
legal
representatives alleged an abuse of the criminal justice system and
stated:
“
Our instructions are that Mdluli’s arrest
is a continuation of the dirty tricks and manoeuverings relating to
the contestation
and jostling for the position of Head of Crime
Intelligence.”
The
representations made to Chauke, although alluded to in his record of
decision filed in terms of Rule 53, do not form part of
the record of
this application.
39.
Mrwebi in response to the representations made to him requested a
report from Breytenbach and sight of the docket. An initial
report
was submitted to Mrwebi under cover of a memorandum from Breytenbach.
Mrwebi was dissatisfied with the report and asked
for more
information. A final report prepared by Smith was placed before
Mrwebi on 2 December 2011. The reports and memorandum
argued in
favour of pursuing the case against Mdluli.
40.
Mrwebi stated in his answering affidavit that after he considered the
reports and examined the docket, he concluded that there
“were
many complications with the matter particularly with regard to the
nature and quality of evidence” and how that
evidence had been
obtained. He was of the view that “there was no evidence, other
than suspicion linking the suspects to
the alleged crimes”. He
also had concerns that the evidence had been acquired improperly
because documents in relation to
the SSA are privileged and that the
documents could not be relied on until the IGI waived the privilege.
And, thus, he believed
there would be problems with the admissibility
of the incriminating documentation. As will appear presently, this
account is inconsistent
with the objective facts as reflected in
contemporaneous correspondence.
41.
Mrwebi determined to withdraw the fraud and corruption charges
against Mdluli and prepared a memorandum and a “consultative

note” setting out his reasons dated 4 December 2011. Mrwebi did
not disclose these obviously relevant documents as part of
his record
of decision belatedly filed in terms of Rule 53. They came to light
however as annexures to Breytenbach’s founding
affidavit in her
application to the Labour Court.
42.
Mrwebi said that he met with Advocate Mzinyathi, the DPP of North
Gauteng, on 5 December 2011 to “discuss” the matter.
He
claims that the consultative note was incorrectly dated and was in
fact drafted after he met with Mzinyathi. There is some doubt
about
this, but because in the final analysis not much turns on the issue I
am prepared to accept that the note was written on
5 December 2011.
The consultative note is addressed to Mzinyathi and Breytenbach. The
opening paragraph records that Mrwebi had
consulted with the DPP
North Gauteng, as required by section 24(3) of the NPA Act. Mzinyathi
in a confirmatory affidavit, filed
on the day before the application
was enrolled for hearing, contradicts this. His averments in that
affidavit create the distinct
impression that his engagement with
Mrwebi on 5 December 2011 was in the way of a brief encounter in
which the issues were not
fully canvassed. They did however meet
again on 9 December 2011 and had a more substantive discussion. In
the consultative note,
Mrwebi expressed his essential view in
relation to the prosecution as follows:
“
Essentially my views related to the process that
was followed in dealing with the matter particularly in view of the
fact that the
matter fell squarely within the mandate of the
Inspector-General in terms of the Intelligence Services Oversight
Act, 40 of 1994.
I noted that it is only the Inspector General who,
by law, is authorised to have full access to the Crime Intelligence
documents
and information and thus who can give a complete view of
the matter as the investigations can never be complete without access
to such documents and information.”
Later
in the note, after briefly referring to the investigation, Mrwebi
stated:
“
However, because of the view I hold of the
matter, I do not propose to traverse the merits of the case and the
other questions any
further. Whether there was evidence in the matter
or not, is in my view, not important for my decision in the matter.
The proposition
which I allude to below, should alone and without any
further ado, be dispositive of the matter.”
43.
The proposition in question, and thus the sole reason for his
decision to instruct the charges to be withdrawn, was his belief
that
those charges fell within the exclusive preserve of the IGI in terms
of section 7 of the Intelligence Services Oversight Act.
10
It is common cause that Mrwebi did not consult the SAPS or the IGI
prior to withdrawing the charges and that Mzinyathi and Breytenbach

informed Mrwebi at the meeting with him on 9 December 2011 that the
IGI was not authorised to conduct criminal investigations.
However,
their advice did not prompt him to change his stance.
44.
In his answering affidavit, as I mentioned earlier, Mrwebi attempted
to cast a different spin on his reasons for passing the
matter to the
IGI. He referred it to the IGI, he said, because he believed “that
the IG would not only help with access to
documents and information”
but could also resolve the issue of privilege. He was merely
postponing the matter until the IGI
sorted out the evidentiary
problems.
45.
Subsequent events do not bear that out. In particular, correspondence
from the IGI to the Acting Commissioner dated 19 March
2012 indicates
that she understood the matter to have been referred to her to
investigate and institute proceedings. This letter
was forwarded to
the NDPP and Mrwebi on 23 March 2012, after the IGI’s legal
adviser had prevailed unsuccessfully upon Mrwebi
to re-instate the
charges against Mdluli. In her letter the IGI commented on Mrwebi’s
consultative note as follows:
“
The IGI derives her mandate from the Constitution
of the Republic of South Africa, 1996 and the Intelligence Services
Oversight
Act, 1994…which provides for the monitoring of the
intelligence and counter-intelligence activities of the Intelligence
Services…Any investigation conducted by the IGI is for the
purposes of intelligence oversight which must result in a report

containing findings and recommendations…The mandate of the IGI
does not extend to criminal investigations which are court
driven and
neither can IGI assist the police in conducting criminal
investigations. The mandate of criminal investigations rests
solely
with the Police. As such we are of the opinion that the reasons
advanced by the NPA in support of the withdrawal of the
criminal
charges are inaccurate and legally flawed. We therefore recommend
that the matter be referred back to the NPA for the
institution of
the criminal charges.”
Her
perception is patent. She appreciated that Mrwebi had instructed the
charges to be withdrawn and discontinued the criminal proceedings.

Both Breytenbach and Mzinyathi understood the position likewise.
Mrwebi took no apparent steps to heed the advice of the IGI.
46.
In his answering affidavit, and in the consultative note, Mrwebi
stated that he consulted with Mzinyathi on 5 December 2011
in terms
of section 24(3) of the NPA Act before making his decision. The
provision requires that a Special Director may only discontinue

criminal proceedings “in consultation” with the relevant
DPP. The nature and extent of the consultation that occurred
is a
matter of dispute. The record of Breytenbach’s disciplinary
proceedings indicates that it may have fallen short of the
statutory
requirement.
47.
What transpired between Mrwebi and Mzinyathi at their meetings on 5
December 2011 and 9 December 2011 is of decisive importance.
It was
the subject of extensive and thorough cross examination by Advocate
Trengrove SC, counsel for Breytenbach, during her disciplinary

proceedings. The respondents have not placed the authenticity,
accuracy or reliability of the record in issue. It therefore may
be
accepted as a correct and complete account of the testimony of Mrwebi
and Mzinyathi under oath in those proceedings. Considering
that
Mrwebi and Mzinyathi are senior officers of the court, one may assume
the evidence was given with due consideration to the
need for
propriety and appropriate candour.
48.
After lengthy cross
examination by Mr. Trengrove, Mrwebi conceded that when he took the
final decision, either on 4 December 2011
or 5 December 2011, to
withdraw the charges and discontinue the prosecution of Mdluli on the
fraud and corruption charges, he did
not know Mzinyathi’s view
of the matter and did not have his concurrence in the decision. He
admitted that he took the decision
prior to writing the consultative
note and did so relying on representations made to him in confidence
by anonymous people, who
he was not prepared to name and whose input
he did not share with Mzinyathi. Mzinyathi’s views were
conveyed to Mrwebi for
the first time in an email on 8 December 2011
in response to the consultative note, after Mrwebi had already
informed Mdluli’s
attorney that the charges would be withdrawn.
49.
Mzinyathi acknowledged such to be the case during his evidence in the
disciplinary proceedings. He was referred during cross
examination to
the email and affirmed the correctness of its content. In the email
Mzinyathi stated:
“
I am concerned that you indicate in your
memorandum to me that you will advise the attorneys of Mr. Mdluli of
your instruction that
charges be withdrawn. I hold the view that such
advice to the attorneys would be premature as I do not share your
views, nor do
I support your instruction that the charges will be
withdrawn.”
50.
Mzinyathi also confirmed that at the meeting on 9 December 2011
(attended by the two of them and Breytenbach), Mrwebi took the

position that he was
functus officio
because he had already informed Mdluli’s attorneys of the
intended withdrawal. Mzinyathi and Breytenbach, unable to persuade

Mrwebi to reverse the decision, then prevailed on him to withdraw the
charges provisionally, to which he agreed. Mzinyathi retreated

somewhat from this testimony in his confirmatory affidavit filed on
the day before the application was enrolled to be heard. His

explanation of events in the affidavit differs from his testimony at
the disciplinary hearing with regard to the degree of concurrence.

His exchange with Advocate Trengrove is therefore important. The most
relevant part merits quoting in full:
Trengrove:
Now when you, when
you then saw him the following day on the 9
th
….he
told you that he was
functus officio
,
do you remember that?
Mzinyathi:
He did indeed.
Trengrove:
Because he had
already informed the attorneys of his decision to withdraw the
charges.
Mzinyathi:
Yes
Trengrove:
Do you know that
he sent off that letter to the attorneys withdrawing the charges, at
the same time sending you those memos (including
the consultative
note)?
Mzinyathi:
Oh, I was not
aware.
Trengrove:
That is what he
told us in evidence. So, by the time he met with you on 9 December
2011 he said he was
functus officio
,
correct?
Mzinyathi:
Yes
Trengrove:
And we all know
that
functus officio
means that I have taken my decision and I no longer have the power to
reopen it, correct?
Mzinyathi:
Yes
Trengrove:
So that presented
you with a
fait accompli
,
the horse had bolted, the case will have to be withdrawn.
Mzinyathi:
Indeed.
51.
In the supplementary founding affidavit, delivered in March 2013, six
months before the application was heard, FUL dealt comprehensively

with Mzinyathi’s involvement, his evidence in the disciplinary
enquiry and the contention that the failure to consult him
rendered
the withdrawal of the charges illegal. Mzinyathi, it may be re-called
is the DPP for North Gauteng, the most senior public
prosecutor in
Pretoria. The record shows he has been involved in this dispute from
the beginning. His evidence in the Breytenbach
disciplinary hearing
was that he disagreed with the decision which had been presented to
him as a
fait accompli
.
This was the factual basis upon which FUL relied in the founding and
supplementary affidavits, as well as its heads of argument,
to submit
that the withdrawal of the charges was illegal.
52.
Mrwebi in his answering affidavit did not deal with Mzinyathi’s
testimony at the disciplinary enquiry (or for that matter
with any of
the averments in the supplementary founding affidavit). His account
of the events between 5 December 2011 and 9 December
2011 takes the
form of a general narrative which does not admit or deny the specific
allegations in the supplementary founding
affidavit. He nonetheless
maintained that he had consulted Mzinyathi. The answering affidavit
was not accompanied by a confirmatory
affidavit from Mzinyathi, who
therefore initially did not confirm Mrwebi’s general account.
In his confirmatory affidavit
filed at the eleventh hour, the day
before the hearing, without any explanation whatsoever for it being
filed six months after
the delivery of the supplementary founding
affidavit, Mzinyathi, differing from his evidence at the hearing,
confirmed the allegations
in Mrwebi’s affidavit as they relate
to him, thus saying in effect for the first time that he had indeed
concurred in the
decision.
53.
Mzinyathi elaborated further, in paragraphs 7 to 9 of the affidavit,
that Mrwebi approached him at his office on 5 December
2011, told him
that he was dealing with representations regarding Mdluli and needed
to consult him. Mrwebi mentioned to him that
he was busy researching
the Intelligence Services Oversight Act and then left his office. The
impression created, as mentioned
earlier, is that no substantive
discussions took place that day and hence clearly there was no
concurrence before Mrwebi wrote
the consultative note and
communicated with Mdluli’s attorneys. Later Mzinyathi heard
from Smith that Mrwebi had instructed
the prosecutor to withdraw the
charges. He then wrote the email of 8 December 2011 to Mrwebi and met
him on 9 December 2011 together
with Breytenbach. At the meeting he
was persuaded that the matter was not ripe for trial and agreed to
the provisional withdrawal
of the charges. This differs materially
from his original position that he was unable to influence the
decision because it had
been finally taken but conceded to the
characterisation of the withdrawal as provisional as a compromise
partially addressing his
concerns.
54.
Taking account of how it was placed before the court by Mzinyathi,
after FUL’s heads of argument were filed, without explanation

for its lateness, and its inconsistency with his testimony at the
disciplinary hearing that he was presented with a
fait
accompli
and was unable to influence the
decision because Mrwebi claimed to be
functus
officio
, this evidence of the DPP of North
Gauteng, to the effect that he ultimately concurred, must regrettably
be rejected as un-creditworthy.
The affidavit is a belated,
transparent and unconvincing attempt to re-write the script to avoid
the charge of unlawfulness. The
version in the supplementary founding
affidavit, originally uncontested by Mzinyathi, and corroborated by
Mzinyathi’s testimony
in the disciplinary hearing, must be
preferred and accepted as the truth.
55.
In light of the contemporaneous evidence, Mrwebi’s averment in
the answering affidavit that he consulted and reached agreement
with
Mzinyathi before taking the decision is equally untenable and
incredible to a degree that it too falls to be rejected.
56.
That a decision to withdraw the charges and discontinue the
prosecution had been made without the concurrence of Mzinyathi is

borne out not only by Mzinyathi’s email of 8 December 2011 and
his evidence at the disciplinary hearing, but also by Mrwebi’s

own interpretation of events. In his answering affidavit, Mrwebi
described the purpose of the visit by Breytenbach and Mzinyathi
to
his office on 9 December 2011 as being “to discuss their
concerns that they do not agree
with my
decision
”. After discussing the
evidentiary issues, according to Mrwebi, they agreed with his
position that the case against Mdluli
was defective, had been
enrolled prematurely and could be reinstated at any time.
Breytenbach, he said, agreed to pursue the matter
and would come back
to him with further evidence. Breytenbach failed to pursue the matter
diligently and did not come back to him.
He then considered the
matter “closed”, as he stated in a letter to General
Dramat of the Hawks, on 30 March 2012.
The court, on the basis of
this account, is asked to accept that the reason the prosecution has
not been re-instated is that Breytenbach
failed in her duty to obtain
additional evidence and report back, as she had promised at the
meeting of 9 December 2011.
57.
Breytenbach, as mentioned, was suspended from her position as
Regional Director of the SCCU in late April 2012, on numerous

unrelated charges of which she was later acquitted at the
disciplinary hearing.
58.
Mrwebi’s reference to “
my
decision
” in his answering affidavit
implies that he believed the decision to withdraw the charges against
Mdluli was his decision
and one made prior to the meeting of 9
December 2011 without the concurrence of Mzinyathi. His use of the
term “closed”
in the letter to Dramat, albeit a few
months later, supports Mzinyathi’s evidence that Mrwebi viewed
himself as
functus officio
,
was unwilling to re-instate the charges and that the decision was
presented to him as a
fait accompli
.
The subsequent agreement to categorise the withdrawal of charges as
“provisional” was a concession to his concerns,
which did
not alter Mrwebi’s prior unilateral decision and instruction
that the charges should be withdrawn. Mrwebi’s
own evidence
thus supports a finding that the decision to withdraw the fraud and
corruption charges was taken by him alone before
the meeting of 5
December 2001, and prior to his writing of the consultative note,
without the concurrence of Mzinyathi.
59.
Had Mrwebi genuinely been willing to pursue the charges after 9
December 2011, one would have expected him to have acted more

effectively. He justified his supine stance on the basis that
Breytenbach had not come back to him with additional evidence to
cure
the defects in the case. He implied that had she done her job, the
charges would have been re-instated.
60.
FUL was justifiably sceptical in its reply to these allegations.
Paragraph 106 and 107 of the reply read:
“
106. Advocate Mrwebi’s version as set out
in this paragraph is, I submit, palpably implausible and in conflict
with his
ipsissima verba
.
In its ordinary meaning ‘closed” is unequivocal. As it is
used in Advocate Mrwebi’s letter to General Dramat,
seen in the
context, there can in my submission be no doubt that Advocate Mrwebi
was implacably opposed to any prosecution against
General Mdluli.
107. Indeed, I submit that the very attempt to adhere to
the untenable casts serious doubt on the veracity of the deponent and
moreover
casts a shadow over the propriety of his decision to block
the prosecution of General Mdluli.”
61.
The attempt to blame Breytenbach is frankly disingenuous and
unconvincing, as is Mrwebi’s subsequent claim that
investigations
into the charges are continuing. Three experienced
commercial prosecutors and two senior police investigators were
satisfied in
early December 2011 that there was sufficient evidence
to prosecute Mdluli on these charges immediately. Breytenbach, who is
an
experienced prosecutor with more than two decades of experience in
the criminal courts, accused Mrwebi, in her founding affidavit
in the
Labour Court application, of “blind and irrational adherence to
his instruction that the charges be withdrawn”
and of
frustrating her efforts to prosecute to the extent of having her
suspended on spurious charges. The assertion that Breytenbach
agreed
that the case against Mdluli was defective is irreconcilable with the
contemporaneous evidence, particularly a threat made
by her in a memo
to the NDPP to seek legal relief to compel the NPA to pursue the
charges, and is accordingly wholly improbable.
62.
In a 24 page memo to the Acting NDPP dated 13 April 2012, annexed to
her affidavit in the Labour Court application, Breytenbach
made a
forceful argument in favour of proceeding against Mdluli on the
corruption charges and stated her view that the instruction
to
withdraw the case against Mdluli and his co-accused, Colonel Barnard,
was “bad in law and in fact illegal”. She
asked the NDPP
for an internal review of Mrwebi’s decision not to institute
criminal proceedings and to review the lawfulness
of the decision.
63.
The memo is a credible indication that the decisions were indeed
brought to the attention of the Acting NDPP for consideration.
The
NDPP in her answering affidavit, though not dealing directly with the
memo, maintained that the decisions to withdraw charges
had not come
to her office for consideration “in terms of the regulatory
framework”. Be that as it may, the memo leaves
no doubt that
Breytenbach did not consider the case against Mdluli to be
“defective”. She was confident that there
was a good
prima facie
case and
reasonable and probable cause for a prosecution, so much so that she
wanted a review by the NDPP of the Special DPP’s
decision and
requested permission to re-enrol the charges and to pursue additional
charges in relation to Mdluli’s misuse
of the funds of the SSA.
Her firm conviction that there was a good case against Mdluli was the
reason she wrote the memo. Breytenbach
concluded:
“
Our professional ethics dictate that we pursue
the matter to its logical conclusion, which may include, of
necessity, taking further
steps if there is no agreement between us”
64.
Breytenbach’s attempts to have the charges re-instated were not
successful. She was suspended about two weeks later on
30 April 2012.
65.
Mrwebi offered no detail at all in his answering affidavit of any
continuing investigation into the fraud and corruption charges
by
SAPS or the NPA, nor did he name any person supposedly seized with
them. He also did not comment on the recommendation of the
IGI that
criminal proceedings should be instituted against Mdluli. His
averments in the answering affidavit regarding continuing

investigations, on the face of them, are unsubstantiated and hence
unconvincing. He sought belatedly to supplement his deficient

evidence in these respects in his supplementary answering affidavit
filed on 10 September 2013.
66.
Motivated in part, as he said, by a need to respond to what he
considers to be a withering attack by Justice Kriegler on his

integrity, credibility, and the propriety of his decisions, and hence
by implication his suitability to hold his office, Mrwebi
delivered
the supplementary answering affidavit (making averments going beyond
the challenge to his integrity) on the day before
the matter was
enrolled for hearing, two months after the replying affidavit was
filed and one month after the applicant filed
its heads of argument.
His reasons for taking so long are not compelling and pay little heed
to the fact that his timing ambushed
the applicant and denied it the
opportunity to deal with the allegations made in the affidavit.
67.
For the most part, the affidavit does not take the matter further and
basically repeats his assertion that the decision was
not unilateral
and that investigations are continuing. Mrwebi referred for the first
time in this affidavit to five written reports
from members of the
prosecuting authority who are investigating the matter, the contents
of which he was disinclined to share with
the court for strategic and
tactical reasons on the grounds that disclosure will hamper and
prejudice the investigation. He was
however prepared to share with
the court the fact that the NPA has experienced “challenges”
in relation to the declassification
of documents. Moreover, on 25
June 2013, three months before the hearing of the application, it was
established by investigating
prosecutors that the evidence of the
main witness (who is not identified by name) will have to be ignored
in its entirety because
it is apparently a fabrication not reflecting
the true version of events. The exact nature of that evidence and the
basis for its
refutation is not disclosed.
68.
For reasons that should be self-evident, it is not possible to attach
much weight to this evidence. The applicant has been denied
the
opportunity to respond to it, and by its nature it is vague and
unsubstantiated. Mrwebi, by his own account, and for reasons
he does
not explain, sat on this information for three months before
disclosing it to the court on the day before the hearing.
The
averments accordingly can carry little weight on the grounds of
unreliability. The conduct of the Special DPP, again, I regret,
as
evidenced by this behaviour, falls troublingly below the standard
expected from a senior officer of this court.
69.
Accordingly, in the final result, I am compelled to find that Mrwebi
took the decision to withdraw the charges against Mdluli
without the
concurrence of Mzinyathi and decided to discontinue the prosecution.
70.
The fraud and corruption charges were formally and “provisionally”
withdrawn in the Specialised Commercial Crimes
Court on 14 December
2011. FUL submits that a provisional withdrawal which has endured for
two years may be considered to be a
permanent withdrawal. The
characterisation of the withdrawal as provisional, as I explain
later, would not normally deflect from
any proven illegality or
irrationality of the decision.
71.
The charges of murder and related offences were withdrawn on 14
February 2011 by Chauke, the DPP for South Gauteng, based in

Johannesburg, the area of jurisdiction in which the alleged offences
were committed. Chauke determined to withdraw the charges
on 1
February 2012 and publicly announced the fact on 2 February 2012. In
his reasons for decision and in his supporting answering
affidavit,
Chauke explained that given the seriousness of the charges and the
lack of direct evidence to sustain the charge of
murder, he decided
to withdraw the charges provisionally and for an inquest to be held
to determine the cause of death of Ramogibe.
Chauke withdrew the 17
other charges of intimidation, assault, attempted murder and
kidnapping because he wanted to avoid fragmented
trials.
72.
An inquest is an investigatory process held in terms of the Inquests
Act
11
which is directed primarily at establishing a cause of death where
the person is suspected to have died of other than natural causes.

Section 16(2) of the Inquests Act requires a magistrate conducting an
inquest
to investigate and
record his findings as to the identity of the deceased person, the
date and cause (or likely cause) of his death
and whether the death
was brought about by any act or omission that
prima
facie
amounts to an
offence on the part of any person. The presiding officer is not
called on to make any determinative finding as to
culpability.
73.
In his supporting answering affidavit, Chauke explained that he took
the decision to withdraw the charges and to refer the murder

allegations to an inquest in response to the written representations
made on behalf of Mdluli to the DPP South Gauteng in November
2011.
He did not annex a copy of those representations to his affidavit.
74.
The inquest was held during the course of April and May 2012. The
magistrate handed down his reasons six months later on 20
November
2012. The reasons suffer a measure of incoherence and the ultimate
findings are contradictory. He found first that an
inference of
Mdluli’s involvement would be consistent with the facts but not
the only inference. He then concluded:
“
The death was brought about by an act
prima
facie
amounting to an offence on the part of
unknown persons. There is no evidence on a balance of probabilities
implicating Richard
Mdluli…..”
75.
The magistrate found correctly that the inquest had no jurisdiction
to deal with the other charges against Mdluli.
76.
In its supplementary founding affidavit delivered in March 2013, FUL
submitted that the evidence put up in the inquest discloses
a
prima
facie
case against Mdluli of murder,
kidnapping, assault with intent to do grievous bodily harm and
defeating the end of justice.
77.
In relation to the killing of the deceased, given that he was shot
three times by unknown assailants, there is no doubt that
an offence
was involved. The only question for the magistrate, in terms of
section 16(2) of the Inquest Act, was
whether
the death was brought about by conduct
prima
facie
amounting to
an offence on the part of any person.
A
prima facie
case will
exist if the allegations, as supported by statements and real
documentary evidence available, are of such a nature that
if proved
in a court of law by the prosecution on the basis of admissible
evidence, the court should convict.
12
The magistrate’s conclusion that an inference of Mdluli’s
involvement would be consistent with the proved facts amounts
to a
finding that Mdluli has a
prima facie
case to answer. The magistrate in effect (but perhaps unconsciously)
accepted that although a case had not been established beyond

reasonable doubt or on a balance of probabilities, there was a
prima
facie
case of murder against Mdluli. It was
not the responsibility of the magistrate to establish culpability
either beyond reasonable
doubt or on a balance of probabilities.
78.
The affidavits before the inquest and the evidence as summarised by
the magistrate in his written reasons do indeed support
a conclusion
that there is a
prima facie
case
against Mdluli on the murder and related charges. The magistrate
found the following to be common cause. Mdluli and Ramogibe,
the
deceased, were both in a relationship with the same woman, Buthelezi,
from 1997 until the murder of the deceased in 1999. Ramogibe
had
secretly married Buthelezi during the period in question. Mdluli was
upset about the relationship “and on a number of
occasions
addressed the issue”. On 23 December 1998 Ramogibe was the
victim of an attempted murder. He reported the incident
to the
Vosloorus SAPS. Ramogibe was requested to report to the Vosloorus
police station to meet with the investigating officer
and to point
out the scene of the attempted murder. On 17 February 1999, Ramogibe
was taken to the scene in Mdluli’s official
vehicle, a green
Volkswagen Golf. Ramogibe was murdered at the scene on that day while
pointing it out to the investigating officer.
79.
In its supplementary founding affidavit, FUL highlighted the
following key attributes of the evidence demonstrating a
prima
facie
case against Mdluli, and upon which the
magistrate’s inference of Mdluli’s involvement is soundly
based.
80.
The deceased’s mother, Ms Maletsatsi Sophia Ramogibe, testified
that during 1998 Mdluli came to her home looking for the
deceased,
obviously unhappy with the fact that the deceased was in a
relationship with Buthelezi. A few days later, Mdluli came
and
fetched her and took her to the police station. There she found her
son bleeding with his shirt covered in blood. Mdluli insulted
her son
in his presence and warned him to keep away from Buthelezi. Her son
was killed a few days later. After his death, Ms Ramogibe’s

daughter, Jostinah, was kidnapped and raped (confirmed by her in a
confirmatory affidavit). She later received a call from an unknown

caller who warned her that if she proceeded to press the case of her
son’s murder all her daughters would be killed.
81.
Ms Alice Manana, an acquaintance of the deceased and Buthelezi,
described how in August 1998 she was allegedly kidnapped, intimidated

and assaulted by Mdluli and two fellow officers of the Vosloorus
SAPS, and forced to disclose the whereabouts of the couple and
to
take the police to them at Orange Farm. The deceased and Buthelezi
were then taken to Vosloorus police station where they were
assaulted
for 30 minutes before being discharged. On 17 October 1998, Ms Manana
was repeatedly shot by an assailant who shot her
at the front door of
her home. During the shooting, she saw Mdluli sitting in the driver’s
seat of a green Volkswagen Golf,
which she knew belonged to him,
parked outside her house.
82.
Buthelezi, now deceased, stated in an affidavit deposed to before her
death that she and the deceased had been kidnapped and
assaulted by
Mdluli and his colleagues.
83.
Five other witnesses, including the deceased’s father,
testified that Mdluli had visited them repeatedly looking for the

deceased and informed them that he would kill Ramogibe if he did not
end his relationship with Buthelezi. Mr Steven Buti Jiyane
testified
that Ramogibe had periodically stayed at his family home because
Mdluli was threatening to kill him.
84.
Mary Lokaje in her affidavit heard the shooting of Ramogibe outside
her house and saw three uniformed policeman running away
from the
scene, and saw the Golf being driven away.
85.
Various affidavits by police officers who investigated the murder
were filed confirming that Mdluli was the main suspect in
the case
although there was no evidence of his direct involvement in the
murder and dealing with the loss of the dockets and evidence
linked
to some of the charges.
86.
The magistrate did not reject any of this evidence. He in fact
accepted it. In the conclusion to his reasons, the magistrate
stated:
“
But be this as it may, their evidence of Mdluli
being to such a degree upset with Oupa’s (Ramogibe)
relationship with an estranged
Tshidi (Buthelezi) that they deemed it
necessary to have reported it and mentioned it in their affidavits
shortly after Oupa’s
death, runs like a golden thread through
the murky waters of their evidence. Evidence that he passed threats
to kill Oupa, whether
made repeatedly or not, against the background
of the strong current of Mdluli’s emotions at the time, is in
my opinion
overwhelmingly probable
”
(emphasis supplied).
He
then found that it had been proved on a balance of probabilities that
Mdluli was “highly upset and humiliated” by
Ramogibe’s
relationship with his former lover, had not come to terms with the
fact that Buthelezi had ended their relationship,
had made threats to
kill Ramogibe and that his family would mourn him and had wanted
Ramogibe out of Buthelezi’s life in
the hope that he could
rescue his relationship with her. He, however, went on to point out
that it might be difficult to link the
threats, intimidation and
alleged kidnapping to the ultimate fatal shooting of Ramogibe. The
inability to call Buthelezi, now deceased,
was in his opinion a
complicating factor. These weaknesses (and others) in the evidence
led the magistrate to conclude that an
inference of Mdluli’s
involvement was permissible but not conclusive. His ultimate
conclusion that there was no evidence
on a balance of probabilities
“implicating” Mdluli is wrong and inconsistent with his
otherwise correct assessment
and evaluation of the evidence.
87.
Neither the Acting NDPP nor Chauke dealt meaningfully in their
answering affidavits with the incriminating evidence against
Mdluli,
FUL’s submissions regarding the evidence, or the finding of the
magistrate that an inference of Mdluli’s involvement
was
consistent with the facts.
88.
The Acting NDPP, after setting out the legal and policy framework,
confined herself to the following averments in paragraphs
19-24 of
her answering affidavit:
“
19. When Advocate Chauke decided to withdraw the
criminal charges of murder and related charges against the Fifth
Respondent (Mdluli),
he was authorised to do so by the Act, the
Policy and the Policy Directives.
20. I am aware that Advocate Chauke referred the matter
to an inquest by a magistrate and that the magistrate found that
there was
no evidence on a balance of probabilities implicating the
Fifth Respondent and his co-accused in the death of Mr Ramogibe.
21. The decisions of the Third Respondent and Advocate
Chauke on this matter have not been brought to my office for
consideration
in terms of the regulatory framework.
22. In the light of the above I did not take any
decision referred to in the Applicant’s founding affidavit. In
terms of section
22(2)(b) of the NPA Act, I may intervene in any
prosecution process when policy directives are not complied with. I
may also in
terms of section 22(2)(c) of the NPA Act review a
decision to prosecute or not to prosecute, after consulting the
relevant Director
and after taking representations of the accused
person, within the time period specified by me, the complainant or
any party whom
I consider to be relevant.
23. At this stage there was no policy contravention
and/or representations received by me to warrant my intervention as
set out
above.
24. This therefore makes the application to review the
withdrawal of charges by this honourable court premature.”
The
Acting NDPP fails to mention the representations made to her by
Breytenbach, or that Mdluli’s written representations
of 26
October 2011 were in fact addressed to her. Nor does she refer to the
magistrate’s finding that an inference of Mdluli’s

involvement was consistent with the proven facts.
89.
Chauke in his answering affidavit similarly ignored some of the
inquest findings, saying simply that the magistrate had found
there
was no evidence implicating Mdluli. Clearly there is evidence
implicating Mdluli. The magistrate’s conclusion is anyhow
not
decisive. Guilt or innocence is a matter for the trial court tasked
with the responsibility of determining culpability. Section
16(2) of
the Inquests Act only requires a magistrate conducting an inquest
to
determine whether the death was brought about by any act or omission
that
amounts
prima facie
to an offence on the part of any person
and, insofar as this is possible, a finding as to whom the
responsible offenders might be
.
13
The DPP is besides not bound by the
findings of the inquest.
90.
Chauke added that resources should not be wasted pursuing
inappropriate cases where there is no prospect of success. On that

basis he concluded that it would be “presumptuous and
foolhardy” to proceed with the prosecution. He, in other words,

is of the opinion that the charges provisionally withdrawn should now
be finally withdrawn. He also contended that an inappropriate
or
“wrong” decision to prosecute would undermine the
community’s confidence in the prosecution system. FUL’s

predictable rejoinder is that his withdrawal of the charges has
already done so.
91.
It is difficult to fathom why the DPP of South Gauteng has not
proceeded with the 17 charges of attempted murder, assault,
kidnapping etc. after the inquest. His reason for provisionally
withdrawing them in his reasons for decision was that he wanted
to
avoid fragmented trials. The inquest resolved that problem. If he did
not want to pursue the murder charge on the basis of the
inquest
finding, he had a duty to continue with the balance of the charges
and has given no reason for not proceeding. The evidence
given in
relation to them during the inquest, on the limited information
available, looks reasonably cogent and compelling.
92.
In terms of the prosecution policy and directives issued in terms of
the NPA Act, there is a duty to pursue a prosecution where
there is a
reasonable prospect of success, and regard should always be had to
the nature and seriousness of the offence and the
interests of the
broader community. Despite the obvious anomalies in the inquest
findings, the evidence as a whole, read particularly
with the witness
statements, establishes
a prima facie
case and points to more than a reasonable prospect that a prosecution
on the murder and related charges may meet with success on
at least
some of the counts.
93.
Two weeks after the criminal charges against Mdluli were withdrawn,
on 29 February 2012, the Acting Commissioner withdrew the

disciplinary charges against him and disciplinary proceedings were
terminated. Mdluli was therefore re-instated and resumed office
from
31 March 2012. During April 2012, his role was extended to include
responsibility for the unit which provides VIP protection
to members
of the National Executive, including President Zuma.
94.
However, shortly afterwards, as a result of the serious allegations
of conspiracy that he had levelled against other senior
members of
the SAPS, the Minister announced, on 9 May 2012, that Mdluli would be
re-deployed from his post as Head of Crime Intelligence
whilst those
allegations were investigated by a ministerial task team. It will be
re-called also that on 19 March 2012 the IGI
recommended that Mdluli
be prosecuted on the fraud and corruption charges.
95.
The applicant launched these proceedings on 15 May 2013. On the same
day the Acting Commissioner re-initiated disciplinary proceedings
and
brought charges against Mdluli, the nature and extent of which remain
unknown. Mdluli was suspended for a second time on 25
May 2012
pending the outcome of that new process. As mentioned earlier, this
court on 6 June 2012 granted the relief sought in
Part A of the
notice of motion and interdicted Mdluli from discharging any function
or duty as a member and senior officer of the
SAPS pending the
outcome of this review; and further interdicted the Commissioner and
the Minister from assigning any function
or duty to him.
96.
In a press statement issued by SAPS on 5 July 2012 it was announced
that the ministerial task team, headed by Chief State Law
Adviser, Mr
Enver Daniels, had found that there was no evidence of a conspiracy
against Mdluli and that the officials and his colleagues
who had
accused him of criminal conduct had acted professionally, in good
faith and with a proper sensitivity to the issues at
hand.
97.
No steps have been taken to re-instate the murder or related charges
against Mdluli since that date – even though, to
repeat, the
evidence put up in the inquest proceedings discloses at least
prima
facie
cases of murder, kidnapping, attempted
murder, assault to do grievous bodily harm and defeating the ends of
justice against Mdluli.
Chauke has given no indication of whether the
murder investigation is being continued or not.
The
structure of the prosecuting authority and the power to withdraw
charges against an accused person
98.
Before considering the grounds of review, it will be useful to
examine the legislative provisions governing the structure and

functioning of the prosecuting authority.
99.
Section 179(1) of the Constitution establishes a single national
prosecuting authority in the Republic, which is required to
be
structured in terms of an Act of Parliament. The relevant statute is
the National Prosecuting Authority Act
14
(“the NPA Act”), which was enacted shortly after the
Constitution was adopted. The NPA Act must be read together with

Chapter 1 of the Criminal Procedure Act
15
(“the CP Act”) titled “Prosecuting Authority”,
which has been amended to reflect the post-constitutional

arrangements established by the NPA Act.
100.
In terms of section 179(1) of the Constitution the prosecuting
authority consists of the NDPP, who is the head of the prosecuting

authority, and is appointed by the President; and DPPs and
prosecutors as determined by the NPA Act.
16
The single prosecuting authority consists of the Office of the NDPP
and the Offices of the prosecuting authority at the High Courts.
17
The Office of the NDPP consists of the NDPP, Deputy NDPPs,
Investigating Directors and Special Directors and other members of
the prosecuting authority appointed at or assigned to the Office.
18
101.
The powers of a Special Director are relevant to this case. A Special
Director is defined in section 1 of the NPA Act to mean
a DPP
appointed under section 13(1)(c), which provides that the President,
after consultation with the Minister and the NDPP, may
appoint one or
more DPP as a Special Director to exercise certain powers, carry out
certain duties and perform certain functions
conferred or imposed on
or assigned to him or her by the President by proclamation in the
Gazette.
102.
Section 6 of the NPA Act establishes an Office for the prosecuting
authority at the seat of each High Court in the Republic.
Each Office
established by this section consists of the head of the Office, who
is required to be a DPP or a Deputy DPP, and other
Deputy DPPs and
prosecutors appointed in terms of section 16(1) of the NPA Act.
Prosecutors are appointed on the recommendation
of the NDPP or a
member of the prosecuting authority designated for that purpose by
the NDPP. They can be appointed to the Office
of the NDPP, the
Offices at the seat of a High Court, to the lower Courts or to an
Investigating Directorate established by the
President in terms of
section 7.
103.
Section 179(2) of the Constitution provides that the prosecuting
authority has the power to institute criminal proceedings
on behalf
of the state, and to carry out any necessary functions incidental to
instituting criminal proceedings. Section 179(4)
importantly provides
that national legislation must ensure that the prosecuting authority
exercises its functions without fear,
favour or prejudice.
104.
The power to institute and conduct criminal proceedings as
contemplated in section 179(2) of the Constitution is given
legislative
expression in section 20(1) of the NPA Act, which reads:
“
The power, as contemplated in section 179(2) and
all other relevant sections of the Constitution, to-
(a) institute and conduct criminal proceedings on behalf
of the State;
(b) carry out any necessary functions incidental to
instituting and conducting
such criminal proceedings; and
(c) discontinue criminal proceedings,
vests
in the prosecuting authority and shall, for all purposes be exercised
on behalf of the Republic.”
105.
All DPPs and Deputy DPPs in Offices at the seat of a High Court, as
well as DPPs who are Special Directors in the Offices of
the NDPP,
are entitled to exercise the powers in section 20(1) in respect of
the area of jurisdiction for which he or she has been
appointed.
19
There is an important qualification though in respect of Special
Directors which has obvious relevance to this case. Section 24(3)
of
the NPA Act provides:
“
A Special Director shall exercise the powers,
carry out the duties and perform the functions conferred or imposed
on or assigned
to him or her by the President, subject to the
directions of the National Director: Provided that if such powers,
duties and functions
include any of the powers referred to in section
20(1), they shall be exercised, carried out and performed in
consultation with
the Director of the area jurisdiction concerned.”
The
intended effect of the proviso to section 24(3) is that whenever a
Special Director based in the office of the NDPP wishes to
institute,
conduct or discontinue criminal proceedings he or she is obliged to
act “in consultation with” the DPP of
the High Court in
the area of jurisdiction concerned.
106.
Prosecutors are competent to exercise the power in section 20(1) to
the extent that they have been authorised by the NDPP or
a person
designated by the NDPP.
The
powers of DPPs, Deputy DPPs and Special Directors to carry out the
duties and functions contemplated in section 20(1), are to
be
exercised subject to the control and directions of the NDPP.
20
107.
Section 22 of the NPA Act defines the scope of the powers, duties and
functions of the NDPP. Section 22(1) provides that the
NDPP as head
of the prosecuting authority shall have the authority over the
exercising of all the powers, and the performance of
all the duties
and functions conferred or imposed on or assigned to any member of
the prosecuting authority. Section 22(2) gives
verbatim effect to
section 179(5) of the Constitution. Section 179(5) reads:
“
The National Director of Public Prosecutions -
(a) must determine, with the concurrence of the Cabinet
member responsible for the administration of justice, and after
consulting
the Directors of Public Prosecutions, prosecution
policy, which must be observed in the prosecution process;
(b) must issue policy directives which must be observed
in the prosecution process;
(c) may intervene in the prosecution process when policy
directives are not complied with; and
(d) may review a decision to prosecute or not to
prosecute, after consulting the relevant Director of Public
Prosecutions, from
the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National
Director considers to be relevant.”
108.
The power of the NDPP to issue policy directives contemplated in
section 179(5)(a) and (b) must be exercised with the concurrence
of
the Minister and after consulting the DPPs.
21
109.
Section 22(4) bestows additional powers, duties and functions on the
NDPP. They include a duty to maintain close liaison with
DPPs
inter
alia
to foster common policies and practices
and to promote co-operation in relation to the handling of complaints
in respect of the
prosecuting authority;
22
as well as a duty to assist DPPs and prosecutors in achieving the
effective and fair administration of criminal justice.
23
110.
The powers, duties and functions of DPPs are set out in section 24 of
the NPA Act. They include the power to institute and
conduct
criminal proceedings. Although section 24(1) makes no express
reference to the power to discontinue proceedings, such power
vests
in a DPP by virtue of section 20(3) which confers on DPPs the
authority to exercise the powers in section 20(1), including
the
power to discontinue proceedings in terms of section 20(1)(c).
Section 24(1)(d) is a general provision which empowers DPPs
to
“exercise all powers conferred or imposed on or assigned to him
or her under any law which is in accordance with the provisions
of
this Act”. As I will discuss presently, section 6 of the CP
Act confers the power to withdraw charges or to stop a prosecution

upon DPPs and prosecutors. There can accordingly be no doubt that
DPPs have the power to discontinue criminal proceedings. However,
as
I have explained, the power of a Special Director, who is by
definition a DPP, is qualified by the proviso to section 24(3).

Similarly, only a DPP who is not a Special Director
24
may give written directions to a prosecutor within his or her area of
jurisdiction who institutes or carries on prosecutions
25
.
111.
Section 6 of the CP Act provides:
“
Power to withdraw charge or stop
prosecution.
- An attorney-general or any
person conducting a prosecution at the instance of the State or
any body or person conducting
a prosecution under section 8, may -
(a) before an accused pleads to a charge, withdraw that
charge, in which event the accused shall not be entitled to a
verdict
of acquittal in respect of that charge;
(b) at any time after an accused has pleaded, but
before conviction, stop the prosecution in respect of that charge,
in which
event the court trying the accused shall acquit the
accused in respect of that charge: Provided that where a
prosecution
is conducted by a person other than an attorney-general
or a body or person referred to in section 8, the prosecution
shall
not be stopped unless the attorney-general or any person
authorized thereto by the attorney-general, whether in general or

in any particular case, has consented thereto.”
The
withdrawal of charges and the stopping of a prosecution after plea
have different consequences. If the charge is withdrawn before
plea,
an accused is not entitled to an acquittal and the charges can be
re-instated at some future date. The stopping of a prosecution,
as
envisaged in section 6(b), involves a conscious act to terminate the
proceedings after a plea has been entered, in which event
an accused
will be entitled to an acquittal and to raise the plea of
autrefois
acquit
(double jeopardy) if the prosecuting
authority should attempt to re-institute criminal proceedings on the
same or substantially
similar charges. A stopping of a prosecution
may occur only at the instance of a DPP
26
or with his consent. A prosecutor, however, may withdraw charges. At
issue in this case is whether a Special Director may withdraw
charges
or instruct a prosecutor to withdraw charges without the consent of a
DPP, a matter to which I will return when discussing
the grounds of
review.
112.
The NDPP, acting in terms of section 21 of the NPA Act, has issued a
Policy Manual containing a Prosecution Policy and Policy
Directives.
They set out relevant policy considerations which normally should
inform any decision to review a prosecution or to
discontinue
proceedings by withdrawing charges or stopping a prosecution. The
NDPP has stated in her answering affidavit that the
review of a case
is a continuing process taking account of changing circumstances and
fresh facts which may come to light after
an initial decision to
prosecute has been made. This may occur, and I imagine often does
occur, after the prosecuting authority
has heard and considered the
version of the accused and representations made on his or her behalf.
113.
Paragraph 4(c) of the Prosecution Policy provides that once a
prosecutor is satisfied that there is sufficient evidence to
provide
reasonable prospects of a conviction a prosecution should normally
follow, unless “public interest demands otherwise”.
It
continues:
“
There is no rule of law which states that all
provable cases brought to the attention of the Prosecuting Authority
must be prosecuted.
On the contrary, any such rule would be too
harsh and impose an impossible burden on the prosecutor and on a
society interested
in the fair administration of justice.”
The
policy further provides that when considering whether or not it will
be in the public interest to prosecute, prosecutors should
consider
all relevant factors, including the nature and seriousness of the
offence, the interests of the victim and the broader
community and
the circumstances of the offender.
114.
Part 5 of the Policy Directives deals with the withdrawal and
stopping of cases. The guidelines draw a clear distinction between

withdrawing charges and the stopping of a prosecution. Paragraphs (8)
and (9) of Part 5 note that the stopping of a prosecution
in terms of
section 6(b) of the CPAct effectively means that the prosecuting
authority is abandoning the case and accordingly,
as a rule, criminal
proceedings should only be stopped when it becomes clear during the
course of the trial that it would be impossible
to obtain a
conviction or where the continuation thereof has become undesirable
due to exceptional circumstances.
115.
Likewise, in relation to the withdrawal of charges, paragraph (1) of
Part 5 states that once enrolled, cases may only be withdrawn
on
compelling grounds “e.g. if it appears after thorough police
investigation that there is no longer any reasonable prospect
of a
successful prosecution”. Paragraph (5) provides that no
prosecutor may withdraw any charges without the prior authorisation

of the NDPP or the DPP where the prosecution has been ordered by
either the NDPP or DPP; while paragraph (6)(a) stipulates that
the
advice of the NDPP or DPP should be sought where the case is of a
sensitive or contentious nature or has a high profile.
116.
Part 6 of the Policy Directives governs the question of
representations. It generally provides that representations should
be
given earnest attention. Paragraphs (5) and (6) have assumed
importance in this case. They read:
. Where a decision of a lower court prosecutor to
prosecute or not to prosecute is the subject matter,
representations should
be directed to the Senior or Control
Prosecutor, and thereafter to the DPP, before the final appeal is
made to the NDPP.
Potential representors should, where possible,
be advised accordingly.
As a matter of law and policy, the NDPP requires that
the remedy of recourse to the DPP be exhausted before representors
approach
the NDPP.”
The
reviewability of prosecutorial decisions
117.
The NDPP in paragraph 47.7 of her written submissions argued that
section 179(5)(d) of the Constitution, allowing her to review

decisions to prosecute or not to prosecute, excludes the power of the
courts to review non-prosecution. Mr Hodes SC, on behalf
of the NDPP,
initially persisted in argument with the contention that the
Constitution vests exclusive power in the NDPP to review

prosecutorial decisions. The courts, he submitted, have no power to
review any prosecutorial decision, only the NDPP may do so
and her
decision will be final and not reviewable. That can never be; if only
because the SCA has already pronounced that prosecutorial
decisions
are subject to rule of law review. It is inconceivable in our
constitutional order that the NPA would be immune from
judicial
supervision to the extent that it may act illegally and irrationally
without complainants having access to the courts.
Considering the
implications, one can only marvel at the fact that senior lawyers are
prepared to make such a submission. The mere
existence of a
permissive extra-judicial measure allowing the NDPP to review
decisions to prosecute or not to prosecute taken by
subordinates on
policy, evidentiary and public interest grounds, does not deny an
aggrieved party access to court. Section 179(5)(d)
of the
Constitution does not aim to oust the constitutional and statutory
jurisdiction of the courts to review on grounds of legality,

rationality and administrative reasonableness.
118. During the course of argument counsel’s line
of reasoning evolved and transformed, as it had to, into two
principal assertions:
first, granted that judicial review of
prosecutorial decisions is constitutionally ordained, it is
restricted to extremely limited
grounds; and second, resort to the
courts is excluded until the process envisaged in section 179(5)(d)
of the Constitution has
been exhausted. I deal in this part only with
the nature and extent of the power to review prosecutorial decisions.
I will consider
counsel’s contention that the section 179(5)(d)
process must be exhausted before resort to the courts is permitted at
a later
stage in this judgment.
119.
At times it would be naïve of the courts to pretend to be
oblivious to the political context and consequences of disputes

before them.
27
In politically contentious matters, the courts should expect to be
called upon to explicate the source, nature and extent of their

powers. There has been much public commentary in the media in
relation to this case which has sought to represent the issue of

contestation to be about the extent of judicial power in relation to
the executive. There is an important and legitimate element
of truth
in that. A danger exists though in the arising of a false perception
that the courts when exercising judicial review of
prosecutorial
decisions may trespass illegitimately into the executive domain.
120.
It accordingly seems to me imperative, in light of counsel’s
submissions, to deal comprehensively with the power of the
courts in
relation to executive decisions of this kind. I do so in the hope of
dispelling the myth that the courts are untowardly
assuming powers of
review, and to illustrate that the powers of the courts to review
prosecutorial decisions are clearly defined
and are consistently
exercised within the parameters set by the Constitution and
Parliament.
121.
The discretion of the prosecuting authority to prosecute, not to
prosecute or to discontinue criminal proceedings is a wide
one.
Nonetheless, as is reflected in the Prosecution Policy Directives,
the prosecuting authority has a duty to prosecute, or to
continue a
prosecution, if there is a
prima facie
case and if there is no compelling reason for non-prosecution.
122.
Courts all over the world are reluctant to interfere with a
prosecuting authority’s
bona fide
exercise of the discretion to prosecute. In
R
(On the Application of Corner House Research and Others) v Director
of the Serious Fraud Office
28
the House of Lords (per Lord Bingham) expressed the need for
deference and caution, stating that courts should disturb the
decisions
of an independent prosecutor only in “highly
exceptional cases”. Courts recognise that at times it will be
within neither
their constitutional function nor practical competence
to assess the merits of decisions where the polycentric character of
official
decision-making, including policy and public interest
considerations, mean they are not susceptible or easily amenable to
judicial
review.
29
The constitutional requirement that the prosecuting authority be
independent, and should exercise its functions without fear, favour

or prejudice, justifies judicial restraint.
123.
However, judicial restraint can never mean total abdication. The
discretions conferred on the prosecuting authority are not

unfettered. In the United Kingdom, for instance, prosecutors must
exercise their powers in good faith and so as to promote the

statutory purpose for which they are given, direct themselves
correctly in law, act lawfully, exercise an objective judgment on
the
relevant material available to them, and be uninfluenced by any
ulterior motive, predilection or prejudice.
30
Hence, although following a deferential approach, in the UK review of
all prosecutorial decisions is permissible on legality and

rationality grounds.
124.
Our law is not significantly different.
Courts
will interfere with decisions to prosecute where the discretion is
improperly exercised (illegal and irrational),
31
mala fides
,
32
or deployed for ulterior purposes.
33
They will do so on the ground that such conduct is in breach of the
principle of legality. The constitutional principle of legality

requires that a decision-maker exercises the powers conferred on him
lawfully, rationally and in good faith.
34
The standard applies irrespective of whether or not the exercise of
power constitutes administrative action in terms of the Promotion
of
Administrative Action Act
35
(“PAJA”), our legislative code of administrative law
which gives effect to the constitutional right to administrative

action which is lawful, reasonable and procedurally fair,
36
and which to a considerable extent shapes the separation of powers
between the judiciary and the executive. PAJA provides a broader

range of review grounds than the principle of legality. Section 1(ff)
of PAJA, however, excludes decisions
to
institute or continue a prosecution
from the
definition of administrative action.
125.
The law in relation to decisions
not
to prosecute or to discontinue a prosecution
is in some respects different. The CC has recognized in an
obiter
dictum
that
different policy considerations may apply to a decision to prosecute
and a decision not to prosecute.
37
The SCA has also referred to the policy
considerations underpinning the exclusion of decisions to prosecute
from administrative
review.
38
In
National Director of Public Prosecutions v
Zuma
39
Harms
DP acknowledged in
an
obiter dictum
the possibility of a judicial
review of a decision not to prosecute and held that such review had
not been excluded by PAJA. In
Democratic
Alliance and Others v Acting National of Public Prosecutions and
Others
40
Navsa JA, without referring to the view of Harms DP in
Zuma
,
seemed to intimate, also in an
obiter dictum,
that a decision to discontinue a prosecution might not be reviewable
under PAJA, but held that a decision to discontinue a prosecution
was
in any event subject to a rule of law review. The learned judge of
appeal said:
“
While there appears to be some justification for
the contention that a decision to discontinue a prosecution is of the
same genus
as a decision to institute or continue a prosecution,
which is excluded from the definition of ‘administrative
action’
in terms of section 1(ff) of PAJA, it is not necessary
for us to finally decide that question. Before us it was
conceded…that
a decision to discontinue a prosecution was
subject to a rule of law review. That concession in my view was
rightly made …[I]n
Democratic Alliance
v President of the Republic of South Africa and Others
2012 (1) SA 417
(SCA) this court noted that the office of the NDPP
was integral to the rule of law and to our success as a democracy. In
that case
this court stated emphatically that the exercise of public
power…must comply with the Constitution.”
126.
So whether or not PAJA applies, decisions not to prosecute or to
discontinue a prosecution are subject to legality and rationality

review. Legality review, if I may state the obvious, is concerned
with the lawfulness of exercises of public power. Decisions must
be
authorised by law and any statutory requirements or preconditions
that attach to the exercise of the power must be complied
with.
Rationality review is concerned with the relationship between means
and ends and asks whether the means employed are rationally
related
to the purpose for which the power was conferred. The process
followed in reaching a decision must also be rational.
41
As pointed out by the CC in
Democratic
Alliance v President of the Republic of South Africa and Other
42
a rationality standard prescribes a low threshold of scrutiny, and
hence validity, for executive or administrative action. It is
the
minimum threshold requirement applicable to the exercise of all
public power by members of the executive and other functionaries.
127.
Rationality review also comprises a procedural element. A refusal to
include relevant and interested stakeholders in a process,
or a
decision to receive representations only from some to the exclusion
of others, may render a decision irrational. In
Albutt v Centre for the Study of Violence and Reconciliation and
Others
43
the CC held that
the exclusion of victims from participation in a special pardon
dispensation was irrational because it disregarded
the objective of
nation building and reconciliation in the legislative scheme.
128.
Decisions coloured by material errors of law, based on irrelevant
considerations or ignoring relevant considerations could
arguably be
considered to be illegal or irrational. Traditionally these grounds
are acknowledged as distinct review grounds, like
the ground of
unreasonableness, which permits review of decisions that no
reasonable person could have so decided. These grounds
are available
in our law under PAJA in respect of decisions that fall within the
definition of “administrative action”.
As some of the
challenges made by the applicant to the decisions of the respondents
in this case are predicated upon such grounds,
it is necessary to
consider if they are available. This requires me to make a finding
whether or not a decision to discontinue
a prosecution (or to
withdraw charges) is administrative action within the meaning of that
term as defined in section 1 of PAJA.
129.
Section 1(ff) of PAJA, as mentioned, explicitly excludes decisions to
institute or continue a prosecution from the definition
of
administrative action, and hence such are patently not reviewable
under PAJA. The legal position with regard to decisions not
to
prosecute or to discontinue a prosecution is less clear.
The
CC has not pronounced finally on whether the decision not to
prosecute constitutes administrative action; and the SCA, as
mentioned,
has expressed two different
prima
facie
opinions on the matter.
130.
In general, a decision will constitute administrative action if it is
made under an empowering provision and taken by an organ
of state
exercising a power in terms of the Constitution, or exercising a
public power or performing a public function in terms
of legislation,
which adversely affects the rights of any person and which has a
direct, external legal effect.
44
The SCA and the CC have interpreted the definition to include a
decision which has the capacity
to
affect legal rights and where it impacts directly and immediately on
individuals.
45
131.
The NDPP and the DPPs, making up the prosecuting authority in terms
of the Constitution and the NPA Act, are unquestionably
organs of
state. In addition, the power of non-prosecution is a corollary to
the power to institute and carry out criminal prosecutions.
46
The power derives from s 179(2) of the Constitution which provides
that
the
prosecuting authority has the power to institute criminal proceedings
on behalf of the state, and to carry out any necessary
functions
incidental to instituting criminal proceedings. It follows that a
decision by the prosecuting authority to withdraw charges
or to stop
a prosecution constitutes the exercise of a power in terms of the
Constitution. It involves exercising a public power
in terms of
legislation, namely the NPA Act; and has a direct, external legal
effect. It results in a prosecution being stopped
or avoided. And,
lastly, it adversely affects the rights of the public, and at least
the complainants, who are entitled to be protected
against crime
through, amongst other measures, the effective prosecution thereof.
A decision to withdraw criminal charges or to
discontinue a
prosecution accordingly meets each of the definitional requirements
of administrative action.
132.
A purely textual interpretation of the definition of administrative
action thus confirms that prosecutorial decisions in general
do
indeed constitute administrative action and are subject to review
under PAJA. This is affirmed further by the fact that section
1(ff)
excludes from the definition of administrative action specific
instances of prosecutorial discretion, namely the institution
and
continuance of a prosecution, thus implying
ex
contrariis
that other prosecutorial
decisions, most especially the decision not to institute or to
discontinue a prosecution, are not so excluded.
47
That choice by the legislature appears to have been deliberate, and
is based on sound policy considerations. Professor Cora Hoexter
in
her seminal work,
Administrative Law in South Africa
,
comments on the exclusionary clause as follows
48
:
“
The intention behind this provision, as reflected
by the draft Administrative Justice Bill appended to the South
African Law Commission’s
1999 report, was to confine reviews
under PAJA to decisions
not
to prosecute. There is less need to review decisions to prosecute or
to continue a prosecution as types of administrative action,
since
such decisions will ordinarily result in a trial in a court of law.”
I
would accordingly respectfully disagree with the
obiter
dictum
of Navsa JA, in
Democratic Alliance and Others v Acting National of Public
Prosecutions and Others,
49
that a decision to discontinue a prosecution is of the same
genus
as a decision to prosecute. For the reasons stated by Professor
Hoexter, a decision of non-prosecution is of a different
genus
to one to institute a prosecution. It is final in effect in a way
that a decision to prosecute is not.
133.
In addition to the language of the definition of administrative
action incorporating prosecutorial decisions within its ambit,
as
well as the implication of the text of the exclusionary clause, (that
but for its terms a decision to prosecute would have fallen
within
the definition and would have constituted administrative action), the
original historical intent, as evidenced in the context
and the
travaux preparatoire
mentioned by Professor Hoexter
,
fortifies the proposition that the intention of the legislature was
to limit the extent of the exclusion and bestow a more extensive

power of review over decisions not to prosecute or to discontinue a
prosecution. Added to that, as already intimated, there are

legitimate structural and prudential arguments justifying the
distinction. There is no need to review decisions to prosecute
because
the lawfulness and rationality of the decision can be
challenged in the subsequent criminal trial; but there is perhaps a
need
for wider review of a decision not to prosecute because without
it there will be inadequate supervision.
134.
Consequently, the preponderance of all the modalities of
interpretation, the text, historical intent, the ethos of our culture

of justification, prudential and structural considerations, and
doctrine, points inexorably to the conclusion that it was the
intention of Parliament, pursuant to its obligation in section 33(3)
of the Constitution to enact PAJA, that decisions not to prosecute
or
to discontinue prosecutions would be subject to judicial review in
terms of PAJA.
135.
Such a finding, I trust, will not be viewed as a case of the courts
assuming the power of review on the basis of casuistic
practice or
doctrine, or worse still, a judicial whim, as the media and social
commentators appear sometimes mistakenly to believe.
It is not the
judiciary which has mandated judicial review of decisions not to
prosecute or to discontinue prosecution. It is Parliament
that has
done so. In fulfilment of its obligation to define the parameters of
the doctrine of the separation of powers, Parliament
enacted PAJA.
136.
I make the point, and most likely labour it, because the bald
submission was made in argument, repeatedly, and at times
vociferously,
that a court exercising a power to review a decision of
the prosecuting authority to discontinue prosecution
ipso
facto
will trespass on the executive domain.
The constitutional ethos and the governing legislative provisions,
textually and contextually,
demonstrate that proposition to be false.
Arguments of this order are predicated on an incorrect understanding
of the principle
of the separation of powers. They misstate the
proper legal position and carry the danger of demeaning the courts in
the eyes of
the public by misrepresenting the nature and legitimacy
of the judicial function.
137.
In conclusion, therefore, the law enacted by Parliament, in
compliance with the obligation entrusted to it by the founders
of our
Constitution, imposes a duty on judges to review certain
prosecutorial decisions. Far from trespassing into the executive

domain, any judge in the South African constitutional order who
declines deferentially to review a decision not to prosecute, in
the
mistaken belief that he or she is mandated by the doctrine of the
separation of powers to do so, will ironically be acting
in violation
of the doctrine of the separation of powers. PAJA has separated the
powers. And the power to review a decision not
to prosecute has been
constitutionally and legislatively separated to the judiciary.
138.
A similarly misplaced argument calling for deference was advanced in
the CC in
Democratic Alliance v President of
the Republic of South Africa and Others
50
in an attempt to persuade the court to adopt
restraint in a rationality review of a decision of the President on
the ground that
review would violate the separation of powers. The
argument was rejected as follows:
“
It is therefore difficult to conceive how the
separation of powers can be said to be undermined by the rationality
enquiry. The
only possible connection might be that rationality has a
different meaning and content if separation of powers is involved
than
otherwise. In other words, the question whether the means
adopted are rationally related to the ends in executive
decision-making
cases somehow involves a lower threshold than in
relation to precisely the same decision involving the same process in
the administrative
context. This is wrong. Rationality does not
conceive of differing thresholds. It cannot be suggested that a
decision that would
be irrational in an administrative law setting
might mutate into a rational decision if the decision being evaluated
was an executive
one. The separation of powers has nothing to do with
whether a decision is rational. In these circumstances, the principle
of separation
of powers is not of particular import in this case.
Either the decision is rational or it is not”
139.
By the same token, the submission, made on behalf of the NDPP in this
case, that the court should not exercise a review power
over
prosecutorial decisions or, if it does so, should decline from
ordering a prosecution because that would offend against the

principle of the separation of powers, is, as I have said, equally
unsustainable. Either the decision is administrative action
or it is
not. If it is, it may be reviewed on the grounds enunciated in
section 6 of PAJA and one of the remedies provided for
in section 8
of PAJA must be appointed. Our law, unlike that of other countries,
rests upon a fundamental right to administrative
justice and a
legislative code unambiguously bestowing a power to review decisions
not to prosecute or to discontinue a prosecution
on the courts.
140.
There is in any event no logical reason to confine review of
non-prosecution to grounds of illegality and irrationality, while

excluding grounds such as reliance on irrelevant considerations,
ignoring relevant considerations or even unreasonableness. These

standards are judicially determinable and just as capable of
application as the standards of legality and rationality. It seems
to
me, therefore, inherently wrong to allow laxity to prosecutors, by
permitting them to act unreasonably or unfairly, when there
is no
compelling policy or moral reason for doing so, especially in an era
where throughout the world corruption and malfeasance
are on the
rise. Our Parliament in permitting review of non-prosecution on these
grounds is patently of similar persuasion.
The
withdrawal of the fraud and corruption charges
141.
The first impugned decision is the one of 5 December 2011 taken by
Mrwebi to withdraw the fraud and corruption charges preferred
against
Mdluli on 20 December 2011. The charges essentially allege that
Mdluli abused the State’s financial resources for
private gain
for his and his wife’s benefit. The SSA, as I have mentioned,
is controlled by the crime intelligence unit over
which Mdluli
exercises control.
142.
FUL contends that that decision by Mrwebi to withdraw the fraud and
corruption charges is liable to review on five alternative
grounds.
First, in terms of the
Constitution, only the NDPP is entitled to discontinue a prosecution.
The decision was therefore
ultra
vires
.
Second, the decision was
unlawful because it was taken by Mrwebi alone, when he could only
take such decision in consultation with
the DPP of North Gauteng.
Third, the decision was irrational because it was taken without
properly consulting the prosecutors and investigators directly

involved in the case. Fourth, the decision was arbitrary because it
was taken in the face of overwhelming evidence in support of

prosecution. Fifth, the decision was based on Mrwebi’s
incorrect belief that the fraud and corruption charges could only
be
investigated by the IGI and was thus based on a material error of
law.
143.
The first ground rests on an interpretation of section 179(5)(d) of
the Constitution, which empowers the NDPP to review a decision
to
prosecute or not to prosecute, after consulting with the relevant
DPP, the accused, the complainant and any other relevant person.
In
National Director of Public Prosecutions v
Zuma
51
the SCA held that the power of review conferred on the NDPP by
section 179(5)(d) of the Constitution
“can
only be an ‘apex’ function, in other words, a function of
the head of the NPA qua head”, which according
to FUL suggests
that no other functionary within the NPA may exercise the power of
review.
144. Section 179(3)(b) of the Constitution provides that
national legislation must ensure that DPPs are responsible for
prosecutions
in specific jurisdictions, but specifically adds that
the provision is subject to subsection (5). The cross reference to
subsection
(5) implies that the DPPs are answerable to the NDPP who
in terms of the various paragraphs of the subsection has the power to
determine prosecution policy and the right to intervene in the
prosecution process to ensure compliance with policy directives,
as
well as the right of review conferred in paragraph (d). The rationale
for such arrangement, according to FUL, would appear to
be that once
commenced a prosecution should continue to conclusion unless there
are weighty considerations justifying cessation.
In order to avoid
inappropriate influence in that regard, the Constitution consciously
assigned the function of review to a more
impartial official at the
apex, removed from the jurisdiction in which the prosecution was
commenced. FUL accordingly submits
that only the NDPP is entitled to
re-visit a decision to prosecute made by a member of the NPA and to
withdraw the charges; and
then only after proper consultation as
contemplated by section 179(5)(d). If correct, it would follow that
Mrwebi had no power
to withdraw the fraud and corruption charges at
all. It was incumbent on him to refer the matter to the NDPP. He did
not do that.
His decision would accordingly be
ultra
vires
, and could be set aside on that basis
alone.
145.
I am not persuaded that this submission is correct. I doubt its merit
from a pragmatic and policy perspective. It would be
onerous indeed
if every decision to discontinue a prosecution taken by prosecutors
throughout the country had to pass across the
desk of the NDPP. The
argument also takes insufficient account of the context and
legislative scheme enacted by the NPA Act, section
6 of the CP Act
and the Prosecution Policy which, as the Acting NDPP has pointed out
in her answering affidavit, allow DPPs to
discontinue a prosecution
and more junior prosecutors to withdraw charges and stop
prosecutions.
146. As head of the SCCU, Mrwebi was a Special DPP,
appointed in terms of section 13(1)(c) of the NPA Act. A Special
Director is
entitled to exercise the powers and perform the functions
assigned to him pursuant to his appointment.
In terms of section 24 of the NPA Act, a
DPP may
institute and
conduct criminal proceedings and carry out functions incidental
thereto as contemplated in section 20(3
).
They include the powers in
section 20(1)
to institute and conduct criminal proceedings on behalf of the State;
carry out any necessary functions incidental to
instituting and conducting such criminal proceedings;
and to
discontinue criminal proceedings. Both a
DPP and a Special DPP may therefore discontinue a prosecution.
52
147.
Moreover, a DPP, or a more junior prosecutor, is empowered by section
6 of the CP Act to withdraw charges or stop a prosecution
in
circumscribed circumstances with the only limitation being that the
prosecution shall not be stopped in terms of section 6(b)
unless the
DPP or any person authorized thereto by the DPP, whether in general
or in any particular case, has consented thereto.
Likewise, a
prosecutor may withdraw a charge in terms of section 6(a), but where
the NDPP or the DPP has ordered the prosecution
he or she will need
prior authorisation. Where the case is of a sensitive or contentious
nature or has high profile, then in terms
of the Policy Directives
the prosecutor is only required to seek the advice (not even the
permission) of the NDPP or DPP.
148.
It is therefore evident from section 20(1)(c) of the NPA Act, section
6 of the CP Act and various provisions of the Policy
Directives that
legislation and prevailing practice permit prosecutors in many cases
to withdraw charges without referring the
question to the NDPP for
permission or review. The Acting NDPP is accordingly correct in her
submission that in terms of the NPA
Act and the Policy Directives
Mrwebi did not need to refer the decision to withdraw the fraud and
corruption charges to the NDPP.
149. In my opinion, section 179(5)(d) of the
Constitution does not reserve an exclusive power to the NDPP to
discontinue a prosecution.
It merely empowers the NDPP to review a
decision of her subordinates to prosecute or not to prosecute, and
specifies the procedure
he or she should follow. The use of the verb
“may” in section 179(5)(d) is indicative of a permissive
discretion rather
than a mandatory pre-condition. The NDPP may review
decisions to prosecute or not to prosecute, at his or her own
instance or on
application from affected and interested persons. The
intention of the drafters of the constitutional provision was not
that all
withdrawals of charges have to be approved by the NDPP.
150.
Be that as it may, and whatever the case, there is no need to
pronounce finally on this ground because the decision to withdraw
the
charges was in fact illegal for other non-constitutional reasons.
151.
Mrwebi, as I have said, is a Special DPP appointed by President Zuma
as such on 1 November 2011 under proclamation 63 of 2011
published in
Government Gazette no. 34767 of 25 November 2011 and in terms of
section 13(1)(c) of the NPA Act. The section allows
the President
after consulting the NDPP and the Minister to appoint “special”
DPPs. These are not ordinary DPPs or
prosecutors. They have special
duties and functions. In terms of the subsection they are “to
exercise certain powers, carry
out certain duties and to perform
certain functions conferred or imposed or assigned to him or her by
the President by proclamation
in the Gazette.” In terms of the
proviso to section 24(3) of the NPA Act a Special DPP may only
exercise the powers referred
to in s 20(1) of the NPA Act, including
the power to discontinue criminal proceedings, in consultation with
the Director of the
area of jurisdiction concerned.
53
The rationale for this arrangement is that certain key decisions of a
Special Director should be subject to the supervision of
the most
senior ordinary prosecutor in the area of jurisdiction. In this case,
the relevant Director was the DPP of North Gauteng,
Mzinyathi.
152.
The requirement in section 24(3) of the NPA Act that the Special
Director exercise any power to discontinue proceedings “in

consultation with” the DPP meant that he could only do so with
the concurrence or agreement of the DPP.
54
In
MacDonald v Minister of Minerals and
Energy
55
the principle was explained as follows:
“
Likewise, where the law requires a functionary to
act ‘in consultation with’ another functionary, this too
means that
there must be concurrence between the functionaries,
unlike the situation where a statute requires a functionary to act
‘after
consultation with’ another functionary, where this
requires no more than that the ultimate decision must be taken in
good
faith, after consulting with and giving serious consideration to
the views of the other functionary.”
153.
The NPA Act in various provisions reflects that distinction, by
requiring certain powers to be exercised “after consultation

with” a specified functionary, while others can only be taken
“in consultation with” the functionary.
56
Parliament in enacting legislation is presumed to have known of the
rulings of the courts on the interpretation of terms enacted
in the
legislation, and thus to have consciously adopted and used them in
the same sense.
57
.
By using the term “in consultation with” in the proviso
to section 24(3) of the NPA Act, Parliament consciously and

deliberately introduced a requirement that a Special DPP may only
discontinue a prosecution with the concurrence of the DPP in
the area
of jurisdiction.
154.
The evidence, extensively analysed above, shows that Mrwebi did not
consult with Mzinyathi before taking the decision to withdraw
the
charges, let alone obtain his concurrence. By the time he met
Mzinyathi he had formed a fixed, pre-determined view and was
not open
to persuasion never mind willing to submit to disagreement. Both he
and Mzinyathi confirmed under oath in the Breytenbach
disciplinary
proceedings that the decision to withdraw was a
fait
accompli
by the time Mrwebi raised it with
Mzinyathi. Under cross examination by counsel for Breytenbach, Mrwebi
conceded that he had taken
the decision to withdraw the charges
before he wrote the consultative note. It is evident from both
Mzinyathi’s email of
8 December 2011 and his testimony that
Mrwebi did not seek Mzinyathi’s concurrence because he believed
he was
functus officio
.
155.
Mrwebi did not claim in his answering affidavit that Mzinyathi
assented to the withdrawal of the charges at the 5 December
2011
meeting. He hardly could because Mzinyathi repeatedly confirmed that
he did not support the withdrawal of the fraud and corruption
charges
against Mdluli. It is clear from the contemporaneous correspondence
and his evidence in the disciplinary proceedings that
Mzinyathi
wished the case to continue. Mzinyathi’s changed version of the
position he took in the meeting of 9 December 2011,
set out in his
belatedly filed confirmatory affidavit, for the reasons stated, is
not credible or reliable
.
156.
Hence, Mrwebi’s claim in paragraphs 27-29 of his answering
affidavit that Mzinyathi and Breytenbach agreed on 9 December
2011
that the case against Mdluli was defective and should only proceed
with the assistance of IGI and the Auditor General is both
irrelevant
and improbable. It is irrelevant because Mrwebi by that time on his
own admission had already taken the decision to
withdraw the charges,
without obtaining the consent of the DPP, North Gauteng. It is
improbable for the same reasons, and also
because it is in conflict
with the contemporaneous and subsequent documents prepared by
Breytenbach and Mzinyathi, with their conduct
and with their
testimony on the course of events. On the basis of that evidence it
is clear that Mrwebi took the decision to withdraw
the fraud and
corruption charges without first securing the DPP’s consent,
which is a jurisdictional prerequisite under the
NPA Act. His
decision was unlawful for want of jurisdiction and must be set aside
for that reason alone in accordance with the
principle of legality.
157.
There was some debate in argument about whether Mrwebi’s
decision and his consequent instruction to Breytenbach and Smith
to
withdraw the charges constituted a discontinuance of criminal
proceedings as contemplated in section 20(1)(c) of the NPA Act.
If it
did not, there was no requirement for Mrwebi to have obtained the
concurrence of the DPP.
158.
The applicable legislation uses three expressions with regard to the
powers involved in a cessation of enrolled criminal proceedings.

Section 6 of the CP Act speaks of the power to withdraw a charge and
the power to stop a prosecution. The NPA Act refers to the
power to
discontinue criminal proceedings. The question arising is whether the
powers in section 6 of the CP Act are specific instances
of the more
general power to discontinue a prosecution. Logically and
linguistically it would seem they are. The
Oxford
English Dictionary
gives as the first meaning
of the word “discontinuance”:
“
the action of discontinuing or breaking off;
interruption (temporary or permanent) of continuance; cessation”
“
Cessation”
in turn means:
“
ceasing, discontinuance, stoppage, either
permanent or temporary”
.
This
meaning was accepted as the definitive meaning of the word in
Cape
Town Municipality v Frerich Holdings
.
58
In
Mazibuko v City of Johannesburg,
59
however, it was held that the cessation was required to be of a more
permanent nature to amount to discontinuance. The meaning
of the term
naturally will depend on its context.
159.
The withdrawal of charges in terms of section 6 of the CP Act has as
its immediate consequence the interruption or stoppage,
permanent or
temporary, of a prosecution. The stopping of a prosecution, because
of the resultant availability of the plea of
autrefois
acquit
, will always be permanent. The
possibility of a permanent cessation in both instances justifies the
conclusion that they are species
of the same
genus
,
namely discontinuance. Accordingly, a decision by a DPP to withdraw
charges under section 6(a) of the CP Act constitutes an exercise
of
the discretion to discontinue criminal proceedings in section
20(1)(c) of the NP Act. To repeat: in terms of section 24(3) of
the
NPA, a Special DPP like Mrwebi may only exercise that discretion with
the concurrence of the DPP. On the facts he did not have
it.
160. It has always been a principle of our common law
that where a statute confers power on a public functionary subject to
certain
preconditions or jurisdictional facts, a failure to comply
with the preconditions will render the exercise of the power illegal.

Such jurisdictional facts are a necessary pre-requisite to the
exercise of the statutory power.
60
If the jurisdictional fact does not exist, the power may not be
exercised and any purported exercise of the power will be illegal
and
invalid. It is trite that all exercises of public power are
reviewable on the same grounds for non-compliance with the
constitutional
requirements of the rule of law.
61
The decision of Mrwebi and his instruction to withdraw the fraud and
corruption charges consequently falls to be set aside irrespective
of
its categorisation as administrative action or not. If we accept that
the decision did constitute administrative action as defined,
it is
reviewable in terms of section 6(2)(b) and section 6(2)(i) of PAJA
which provide that a court has power to review administrative
action
if a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with, or if the
action is
otherwise unconstitutional or unlawful.
161. The decision and instruction are similarly
vulnerable to review on other grounds. In deciding to withdraw the
corruption and
fraud charges against Mdluli, Mrwebi considered
representations from Mdluli’s lawyers, and from further unnamed
operatives.
He did not, however, call for or consider representations
from the investigators in the case, the Hawks, the IGI or the Acting
Commissioner of Police. Nor did he consult the prosecutors directly
involved in the case on his decision to refer the matter to
the IGI.
He contends that he was not required to do so. FUL has argued he was
obliged to consult with these stakeholders in terms
of section
179(5)(d) of the Constitution, which compels the NDPP to consult with
the accused, the complainant and any relevant
party whenever she
reviews a decision to prosecute. That duty, according to FUL, applies
equally to subordinate functionaries performing
the same role in
terms of legislation. Section 20(3) of the NPA Act provides that the
powers in section 20(1) of a DPP to discontinue
a prosecution are
subject to the Constitution.
162.
The provisions of section 20(1)(c) of the NPA Act and section 6 of
the CP Act are silent on the question of consultation. It
may be that
an argument could be advanced that these provisions read with the
Policy Directives violate section 179(5)(d) of the
Constitution,
which infringement might be cured by reading the procedural
requirements of section 179(5)(d) into these sections.
That argument
was not made before me. The less adventurous submission made by Mr
Maleka SC on behalf of FUL, if I understand it
correctly, is that
section 20(1)(c) of the NPA Act must be read in conformity with the
constitutional provision.
163.
While it is correct that the Constitution requires legislation to be
interpreted, where possible, in ways which give effect
to its
fundamental values and in conformity with it, reading words into a
statutory provision should only follow upon a pronouncement
of
constitutional invalidity under s 172(1)(a) of the Constitution. A
court, however, should still prefer an interpretation of
legislation
that falls within constitutional bounds over one that does not,
provided it can be reasonably ascribed to the provision.
Legislation,
which is open to a meaning which would be unconstitutional but is
reasonably capable of being read and applied in
conformity with the
scheme envisaged by the Constitution, should be so read, but the
interpretation and application of it may not
be unduly strained
.
62
164.
I hesitate to pronounce definitively on whether the requirements of
the Constitution should be read directly into the legislation
solely
on the basis that the powers in section 20(1) of the NPA Act are
stated to be subject to the Constitution. There is no need
to do so.
The decision, as I have found, is illegal for not complying with the
duty to consult the DPP and it is unnecessary to
resort to the
Constitution to introduce, as a concrete requirement, jurisdictional
facts which the legislation has not expressly
enacted. More
compelling though, in my possibly pedantic view, and in the end of
equal consequence, is FUL’s argument that
the failure properly
to consult was fatal to the validity of Mrwebi’s decision in
this case because it did not meet the requirements
of rationality. An
interpretation that the powers conferred by the legislation should be
exercised rationally in conformity with
the Constitution will not be
unduly strained and will give sufficient effect to the fundamental
values.
165.
The constitutional principle of legality requires that a
decision-maker exercises the powers conferred on him lawfully,
rationally
and in good faith.
63
The standard applies irrespective of whether or not the exercise of
power constitutes administrative action in terms of PAJA. Rationality

review, as explained earlier, is concerned with the relationship
between means and ends and asks whether the means employed are

rationally related to the purpose for which the power was conferred.
The process followed in reaching a decision must be rational.
64
A refusal to include relevant and interested stakeholders in a
process, or a decision to receive representations only from some
to
the exclusion of others, may render a decision irrational.
65
166.
Given the purpose and objectives of the power to discontinue a
prosecution, to ensure justice in the prosecutorial process,
once
Mrwebi decided to consider representations from any relevant person,
the standard of rationality required him to deal with
all
stakeholders even-handedly and to consider representations both from
those in favour of withdrawal and those against.
66
The process by which he reached his decision was arbitrary, and the
consequent decision irrational, because the means were not
rationally
linked to the purpose. He could not do justice without hearing all
relevant stakeholders. At the very least, he had
to observe the
Policy Directives, which he also failed to do. The Prosecution Policy
requires the advice of the NDPP to be sought
where a sensitive, or
contentious, or high profile case is to be withdrawn.
67
My understanding of the position of the NDPP is that Mrwebi’s
decision was not referred to her.
167.
For those reasons also, the decision to withdraw the fraud and
corruption charges was irrational and consequently illegal.
168.
FUL has lastly argued that Mrwebi’s decision was coloured by
material errors of law, based on irrelevant considerations
and,
though it does not say so in so many words, intimated that the
decision was so unreasonable that no reasonable person could
have so
decided. Strictly speaking, because of my findings that the decision
was illegal and irrational in violation of the principle
of legality,
I do not need to deal with these submissions. However, in view of the
possibility of an appeal, it seems appropriate
to make a finding on
the merit or otherwise of these review grounds as well.
169.
To recap briefly: a decision to discontinue prosecution is
administrative action within the meaning of that term as defined
in
section 1 of PAJA. Mrwebi’s decision to withdraw the fraud and
corruption charges and to discontinue the prosecution is
accordingly
susceptible to review on PAJA grounds other than illegality and
irrationality.
170.
The charges of fraud, corruption and money-laundering were initiated
against Mdluli as a result of a comprehensive investigation
by
Colonel Viljoen that uncovered the evidence in support of his
prosecution. The prosecutors, the DPP, and the IGI all opposed
the
withdrawal of those charges. Breytenbach, the regional head of the
SCCU, wrote a detailed memorandum to the NDPP cogently motivating
why
the charges should not be withdrawn. The Prosecution Policy requires
that cases should only be withdrawn on compelling grounds.
171.
Mrwebi, however, advanced only two reasons for his decision to
withdraw the charges, which were recorded in his consultative
note of
4 December 2011, and which were far from compelling. First, he was
concerned that the charges initiated against Mdluli
may have been
pursued with an ulterior motive. Second, he found that the offences
with which Mdluli had been charged fell within
the mandate of the IGI
and could only be investigated by her offices. Mr Maleka submitted
that each of these findings was unfounded,
and was based on
irrelevant considerations and material errors of law and fact.
172.
The factual claim of a conspiracy against Mdluli by his colleagues
was investigated and rejected by an inter-ministerial task
team
established for that purpose. The evidentiary basis for that decision
is not before me and I am unable to assess its probative
value. But,
in any event, an improper motive would not render an otherwise lawful
prosecution unlawful
68
and would not excuse a prosecutor from engaging with the merits of
the case. Mrwebi at the outset stated openly in his consultative
note
of 4 December 2011 that he saw no need to engage with the merits of
the case against Mdluli. In accordance with his incorrect

understanding that it was a matter for the IGI he considered it
unnecessary to traverse the merits or to evaluate the evidence.
He
believed the referral to the IGI was “dispositive of the
matter”. He took the decision without regard to the merits
of a
prosecution in the interests of justice and thus ignored mandatory
relevant considerations.
173.
The purported referral to the IGI was equally misdirected. The IGI’s
oversight role over the intelligence and counter-intelligence

services is restricted to monitoring their compliance with the
Constitution and other laws, and to receive complaints of
misconduct.
69
As mentioned by the IGI
in her
letter of 19 March 2012 to the Acting Commissioner,
the
IGI’s mandate does not extend to criminal investigations.
Mrwebi’s decision to withdraw the fraud and corruption
charges
because he apparently believed them to fall within the exclusive
purview of the IGI was accordingly based on a material
error of law.
Yet, despite being aware of the IGI’s view, as appears from his
reasons for decision dated 12 July 2012, he
irrationally adhered to
his position.
174.
These were the only reasons advanced by Mrwebi at the time he decided
to withdraw the charges. His decision was thus evidently
based on
errors of law and fact. He took account of irrelevant considerations
and ignored relevant considerations. The decision
is therefore
liable to review in terms of sections 6(2)(b), and 6(2)(e)(iii) of
PAJA. In so far as the decision was attended by
factual errors, and
in view of Mrwebi’s stance overall, the decision was not
rationally connected to the information before
him and the purpose of
the NPA Act, and is thus reviewable also under section
6(2)(f)(ii)(bb) and (cc) of PAJA.
175.
As discussed earlier, in his reasons filed pursuant to Rule 53 and in
his answering papers, Mrwebi took a different tack. He
there claimed
that there was insufficient evidence to support a successful
prosecution against Mdluli and that he referred the
matter to the IGI
so that she could investigate or facilitate access to the privileged
documentation required. The withdrawal of
the charges, he said, was
merely
provisional, to
allow for further investigation to take place. This version is at
odds with the contemporaneous reasons Mrwebi gave
for his decision,
and the evidence of Breytenbach and Mzinyathi in the disciplinary
proceedings. Even if the charges were supposedly
provisionally
withdrawn in court, Mrwebi’s pronouncements at the time evinced
an unequivocal intention to stop proceedings
altogether. He
considered the referral to the IGI as “dispositive”; and
in his letter of 30 March 2012 to General Dramat
he referred to the
matter as “closed”. In the circumstances, his new version
is implausible and probably invented after
the fact, in what FUL
submits was “a last-ditch attempt to explain his otherwise
indefensible approach”. But even if
the decision was in fact
“provisional”, its qualification as such does not save it
from illegality, irrationality and
unreasonableness. A provisional
decision which languishes for two years without any noticeable action
to alter its status may be
inferred to have acquired a more permanent
character.
176.
For all of the many reasons discussed, the decision and instruction
by Mrwebi to withdraw the fraud and corruption charges
must be set
aside. It was illegal, irrational, based on irrelevant considerations
and material errors of law, and ultimately so
unreasonable that no
reasonable prosecutor could have taken it.
The
withdrawal of the murder and related charges
177.
The second decision challenged by FUL is the decision of Chauke, the
DPP of South Gauteng, to withdraw the murder charge and
refer the
issue of Ramogibe’s death to an inquest and to withdraw all the
other charges against Mdluli, to avoid “fragmented
trials”
in order to allow Mdluli to stand one trial where he could answer all
of the charges against him. FUL challenges
the decision on three
grounds: it was taken by the DPP, South Gauteng when only the NDPP
is entitled to review a decision by another
official of the NPA to
discontinue a prosecution; it was taken without proper consultation;
and was unfounded and irrational.
178.
I have already addressed FUL’s contention that the NDPP has
exclusive power to review and withdraw a decision to prosecute.
The
power conferred on the NDPP to review the decision of a subordinate
to prosecute or not to prosecute by section 179(5)(d) of
the
Constitution and section 22 of the NPA Act, in my estimation, does
not directly exclude or limit the power conferred upon a
DPP by
section 20(1)(c) of the NPA Act to discontinue criminal proceedings
and by section 6 of the CP Act to withdraw charges or
to stop a
prosecution. It was never intended in enacting the constitutional
provisions that the NDPP would be the sole repository
of the power to
discontinue a prosecution.
179.
However, as I explained in the analysis of the first impugned
decision, any decision by an official of the prosecuting authority
to
discontinue a prosecution will need to be properly informed by
relevant considerations if it is to be upheld as rational. The

failure to consult with affected and interested parties often, if not
invariably, will have the consequence that vital relevant
information
is ignored and the decision will be coloured by irrationality because
there is no rational connection between the information
available to
the official, the purpose of the empowering provision, the decision
and the reasons for it.
180.
Accordingly, I accept FUL’s submission that the rule of law and
the requirement of rationality constrained Chauke to
consider
representations from the complainants and victims of the alleged
crimes. Chauke did not deny the averments made in the
founding
affidavit and the supplementary founding affidavit that he did not
seek input from the victims and other role players.
He referred only
to representations from the legal representatives of Mdluli.
Moreover, the Policy Directives also obliged him
to seek the advice
of the Acting NDPP before withdrawing the murder and related charges.
Both the Acting NDPP and Chauke confirm
in their affidavits that he
did not refer the matter to her. The decision to withdraw those
charges was accordingly taken without
the legal and rational
prerequisites to the exercise of the power being met. The process
leading to the decision being taken was
irrational because it lacked
input from crucial stakeholders in the process. It also appears to
have given no weight at all to
the evidence of the victims of the
other crimes as alleged in the 17 non-murder charges, from which it
may be inferred symptomatically
that Chauke failed to apply his mind
to all the relevant considerations mandated by the Constitution, and
in the ultimate analysis
acted capriciously; meaning that his
decision was reviewable in terms of section 6(2)(e)(vi) of PAJA.
181.
The details of the investigation that led to the murder and related
charges being preferred against Mdluli are painstakingly
set out in a
report by the investigating officer, Colonel Roelofse, which strictly
speaking is hearsay, but with the content of
which none of the
respondents has taken issue. The evidence against Mdluli also appears
from the affidavits filed in the inquest
proceedings, which, as
discussed, include affidavits from different witnesses claiming that
they were personally intimidated, assaulted
and/or kidnapped by
Mdluli; and affidavits from seven witnesses who personally witnessed
Mdluli threatening to kill Ramogibe, or
threatening and assaulting
other people. This evidence presents a compelling
prima
facie
case against Mdluli.
182.
In terms of the Prosecution Policy Directives, Chauke may only
withdraw charges in the face of such formidable evidence if
there are
compelling reasons to do so. Yet, he has advanced none. Instead, he
has stated puzzlingly that he is disinclined to prosecute
because
there is no direct evidence linking Mdluli to the murder of Ramogibe.
He has offered no evaluation of the cogency of the
circumstantial
evidence against Mdluli. And although circumstantial evidence
involves an additional tier of inferential reasoning,
it is incorrect
to assume such evidence in the end will prove less cogent than direct
evidence. All involved in the administration
of criminal justice,
including I imagine Chauke, the most senior public prosecutor in
Johannesburg, know that circumstantial evidence
at times can be more
persuasive than direct evidence. In any event, there is in fact
direct evidence in relation to the charges
of attempted murder,
kidnapping and assault, which were withdrawn as a corollary to the
decision to avoid prosecuting Mdluli on
a piecemeal basis.
183.
Chauke’s reliance on the inquest finding for his decision not
to proceed is patently irrational. An inquest, as I explained
when
discussing the facts, is an investigatory process directed primarily
at establishing a cause of death where the person is
suspected to
have died of other than natural causes. It is not aimed at
establishing anyone’s guilt and, indeed, could not
competently
do so.
70
The presiding officer
is not
called on to make any finding as to culpability.
An inquest is no substitute
for a criminal prosecution because it cannot determine guilt. In
fact, once criminal charges have been
brought in relation to a
particular death, an inquest will generally be precluded, since the
two processes should not run concurrently.
184.
Chauke’s motive for referring the matter to an inquest was
therefore dubious. The identity of the deceased was known,
as was the
cause of his death. The only outstanding issue is the culpability of
Mdluli.
Chauke could never have hoped to
establish Mdluli’s culpability, and to resolve the criminal
prosecution, by referring the
matter to an inquest. The inquest
findings are not binding on the prosecuting authority. Chauke’s
statement in his affidavit
that in the light of the inquest finding
“it would be presumptuous and foolhardy” to prosecute is
accordingly wrong
in law and symptomatic of the irrationality of his
decision, evincing as it does a lack of rational connection between
the purpose
of his decision, the various empowering provisions, the
evidence before him and the reasons he gave for his action.
185.
In any event, to state the blatantly obvious, and as the magistrate
himself was at pains to point out, the inquest could only
deal with
the murder charges. It could not, and did not, address the remaining
17 charges of kidnapping, assault, intimidation
and defeating the
ends of justice that were preferred against Mdluli. It follows that a
referral to inquest proceedings could never
have provided a
sufficient basis to withdraw those remaining charges. The
justification of avoiding fragmented trials fell away
on 2 November
2012, almost a year ago, when the magistrate handed down his reasons.
Chauke has failed to address these other charges
(and the purported
basis for their withdrawal) in his answering affidavit at all. As Mr
Maleka correctly submitted, that must be
because he has not properly
applied his mind to those charges, and the correctness of their
withdrawal; or, more troublingly, perhaps
because he is acting
capriciously and with an ulterior purpose.
186.
Accordingly, the decision to withdraw the murder and related charges
was taken in the face of compelling evidence for no proper
purpose,
is irrational and therefore reviewable on legality and rationality
grounds, as well as in terms of section 6(2)(e) and
(f) of PAJA and
falls to be set aside.
The
NDPPs arguments on reviewability and the duty to exhaust internal
remedies
187.
In both his written submissions and in argument, counsel for the NPA
gave little attention to the review grounds raised by
FUL in relation
to the two impugned decisions, and concentrated instead upon the
contention that the court had no power to review
the decisions of a
DPP or Special Director. As he put it in paragraph 12 of his heads of
argument:
“
The most significant aspect that this Honourable
Court will be required to decide is whether it does in fact have the
right (sic)
to review these two decisions.”
The
submission was developed in paragraphs 42-43 of the heads as follows:
“
These statutory provisions have been the subject
matter of numerous judicial decisions. Nevertheless, despite
commentary and statements
to the contrary, it has never been
judicially pronounced that there is in fact a right to review a
decision by a Director of Public
Prosecutions or the National
Director of Public Prosecutions to provisionally withdraw criminal
charges against an accused person.
Put somewhat differently, the Applicant’s legal
representatives are challenged to identify any matter in which such
an application
for review has succeeded and resulted in a decision by
the First Respondent or any of its subordinates to withdraw charges
being
set aside and the First Respondent being compelled to forthwith
reinstate criminal charges and prosecute them without delay, which
is
the relief sought herein against the First and Third Respondents.”
188.
After analysing the judgment of Harms DP in
National Director of Public Prosecutions v Zuma
71
in some detail, counsel submitted that the decision was authority for
various propositions, only three of which are relevant for
present
purposes (the others have been disposed of in the preceding
analysis). In paragraph 47 of the heads he submitted: firstly,
a prosecutorial review is not an administrative decision that is
subject to review in the normal course or in terms of PAJA; secondly,

a decision to withdraw charges pending the receipt of further
evidence and to prosecute or not to prosecute is not necessarily

final; and thirdly a decision to prosecute or not to prosecute is not
subject to judicial review.
189.
As to the first proposition, if by a “prosecutorial review”
is meant an exercise by the NDPP of her discretion
under section
179(5)(d) of the Constitution, then the contention is not
sustainable. As I have said, and it bears repeating, it
is
inconceivable that the Constitution intended to exclude judicial
review of such decisions entirely. Whether the decision would
be
administrative action or not is possibly debatable, but the
authorities already discussed leave no doubt that any action in
terms
of that provision will still be subject to a rule of law review on
grounds of legality and rationality. However, it is important
to
note, we are not here concerned with a review under section
179(5)(d). Although Mdluli’s initial representations were

addressed to the NDPP, it does not seem that she acted on them.
Mrwebi and Chauke took the impugned decisions. The decisions at
issue
are in fact decisions to withdraw charges in terms of section 6 of
the CP Act
190.
The third proposition, presumably with section 6 of the CP Act in
mind, is plainly wrong. For the reasons spelt out earlier,
when
discussing the reviewability of prosecutorial decisions, a decision
to prosecute is subject to rule of law review and a decision
not to
prosecute or to discontinue a prosecution is subject to rule of law
review and in addition to review in terms of PAJA. Nor
do I accept Mr
Hodes’ related submission that the possibility of obtaining a
certificate of
nolle prosequi
and the right to pursue a private prosecution in terms of section 7
of the CP Act ousts the review jurisdiction of the courts.
The
existence of this procedure cannot be read to give the NDPP
carte
blanche
to act without regard to the
requirements of legality, rationality and reasonableness. The
suggestion is preposterous and no more
need be said.
191.
The second proposition does however pose a legitimate challenge. It
forms the basis of the argument counsel developed in court
that
resort to the court should be denied until internal remedies are
exhausted. All the deponents who filed affidavits on behalf
of the
NPA highlighted the alleged “provisional” nature of the
decision to withdraw charges. And, the Acting NDPP consciously

pleaded that the decisions to discontinue the prosecutions “have
not been brought to my office for consideration in terms
of the
regulatory framework” and submitted that the application to
review the withdrawal of the charges by the court was
accordingly
“premature”.
192.
The regulatory framework to which the NDPP refers is of course
section 179(5)(d) of the Constitution read with section 22(2)(c)
of
the NPA Act which permit her to review decisions of her subordinates
to prosecute or not to prosecute. It includes also Part
6 of the
Policy Directives, in particular paragraphs (5) and (6) which provide
that where a decision of a lower court prosecutor
to prosecute or not
to prosecute is the subject matter, representations should be
directed to the Senior or Control Prosecutor,
and thereafter to the
DPP, before the final appeal is made to the NDPP. It is explicitly
stated that as a matter of law and policy,
the NDPP requires that the
remedy of recourse to the DPP be exhausted before representors
approach the NDPP. Unfortunately, these
provisions were not referred
to in argument and I do not have the benefit of counsel’s
submissions regarding their content
or status. They normally would
require compliance, and do indicate an intention to introduce a duty
to exhaust internal remedies
by representors (which FUL is not) where
representations have been made. However, for reasons I will elucidate
presently, non-compliance
is not fatal to this review application.
193.
First of all, the categorisation of the withdrawal of charges as
“provisional” is inconsequential. All withdrawals
which
do not amount to the stopping of a prosecution in terms of section
6(b) of the CP Act are provisional in the sense that it
always
remains possible to re-institute charges withdrawn under section 6(a)
of the CP Act. The withdrawal of charges under section
6(a) of the CP
Act, as explained, and as I suspect is the case in the majority of
withdrawals, can easily become permanent. The
mere characterisation
of an illegal, irrational or unreasonable decision as provisional
would not automatically save it from review.
Provisional or not, an
illegal decision will normally be set aside.
194.
The fact of the matter, and the more relevant truth, is that the NDPP
can review any decision “not to prosecute”
in terms of
section 179(5)(d) of the Constitution and section 22(2)(c) of the NPA
Act; and the real inquiry therefore is whether
the decisions of
Mrwebi and Chauke to discontinue the prosecution of Mdluli on the
respective charges could only be reviewed in
court once the applicant
had exhausted the remedy of a review before the NDPP under those
provisions.
195.
FUL’s response to the contention that the application is
premature is somewhat cryptic. In paragraph 78 of the replying

affidavit it first rejects the proposition that only the NDPP may
review the decisions of DPPs and Special DPPs to discontinue
a
prosecution and then in paragraph 79 states:
“
In any event, it is plain that the first
respondent has long since been aware of the relevant decisions and at
the very least tacitly
confirmed them.”
The
Acting NDPP did not make any replicating averment in answer to this
plea. In the belatedly filed supplementary answering affidavit,

Mrwebi merely re-asserted that the court has no power at all to
review prosecutorial decisions, which is patently wrong, and, as

Justice Kriegler rightly says, a little worrying to hear from a
senior prosecutor. In fairness though, Mrwebi did add that the

application was in any event “premature”. However, Mrwebi
did not take issue with the allegation that the NDPP had
tacitly
confirmed the decisions to withdraw. She clearly has done exactly
that.
196.
The dispute that forms the subject matter of this application has
been on-going for more than 18 months since February 2012.
Given its
high profile nature and the outcry about it in the media and other
quarters, there can be no doubt that the NDPP was
aware of it, and
its implications, from the time the charges were withdrawn. Mdluli’s
representations were sent to her and
she referred them down the line;
probably rightly so. But she was nonetheless empowered by section 179
of the Constitution to intervene
in the prosecution process and to
review the prosecutorial decisions
mero motu;
yet despite the public outcry she remained supine and would have us
accept that her stance was justified in terms of the Constitution.

She has not given any explanation for her failure to review the
decisions at the request of Breytenbach made in April 2012. Her

conduct is inconsistent with the duty imposed on all public
functionaries by section 195
of the Constitution to be responsive,
accountable and transparent.
197.
Besides not availing herself of the opportunity to review the
decision, she waited more than a year after the application was

launched before raising the point and then did so in terms that can
fairly be described as abstruse. Her “plea” made
no
reference to the relevant paragraphs of the Prosecution Policy
Directives, the relevant provisions of PAJA or the principles
of the
common law. A plea resting only on an averment that an application is
“premature” is meagrely particularised
and lacks
sufficient allegations to found a complete defence that there had
been non-compliance with a duty to exhaust internal
remedies. Had we
to do here with a set of particulars of claim, they would have been
excipiable on the grounds of being vague and
embarrassing.
198.
At common law the mere existence of an internal remedy is not enough
by itself to indicate an intention that the remedy must
first be
exhausted before bringing a rule of law review.
72
As I have said, I consider the power in section 179(5)(d) of the
Constitution to be permissive. There is nothing in the provision

itself, or expressly stated or necessarily implied in the legislative
scheme as a whole, which overtly requires a person aggrieved
by a
decision to discontinue a prosecution to first take the matter on
review to the NDPP.
199.
Moreover, in
Maluleke v MEC for Health and
Welfare, Northern Province
,
73
Southwood J remarked, correctly in my respectful opinion, that the
duty to exhaust internal remedies, if one exists, will seldom
be
enforced where the complaint is one of illegality, or, I would add,
one of irrationality, or in cases where the remedy would
be illusory.
It is reasonable to infer from the Acting NDPP’s supine
attitude that any referral to her would be a foregone
conclusion and
the remedy accordingly of little practical value or consequence in
this case. Her stance evinces an attitude of
approval of the
decisions. Had she genuinely been open to persuasion in relation to
the merits of the two illegal, irrational and
unreasonable decisions,
she would have acted before now to assess them, explain her
perception, and, if so inclined, to correct
them.
200.
Section 7(2)(c) of PAJA is more stringent than the common law and
permits exemption from the duty to exhaust internal remedies
only in
exceptional circumstances on application. I am satisfied that there
are exceptional circumstances in this case, being those
pleaded by
FUL. Admittedly, there is no formal application for exemption,
primarily I imagine because the special plea, if that,
was so
abstrusely pleaded; which is sufficient basis to grant condonation.
In
Koyabe v Minister of Home Affairs
74
the Constitutional Court stated that these requirements should not be
rigidly enforced and should not be used by officials to frustrate
the
efforts of an aggrieved person or to shield the decision-making
process from judicial scrutiny. Furthermore, and most importantly
in
this case, the remedy in question must be available, effective and
adequate in order to count as an existing internal remedy.
For the
reasons I have stated, a referral to the NDPP in this case would be
illusory. Had the NDPP truly wanted to hold the remedy
available,
instead of simply asserting that the application to court was
premature, as a senior officer of the court she would
(and should)
have assisted the court by reviewing the decisions and disclosing her
substantive position in relation to them and
their alleged illegality
and irrationality. She has not pronounced at all on the decisions or
for that matter the evidence implicating
Mdluli. Her stance is
technical, formalistic and aimed solely at shielding the illegal and
irrational decisions from judicial scrutiny.
201.
In any event, if I am wrong in this, the more stringent PAJA standard
does not apply to a rule of law review, and the duty
to exhaust
internal remedies before resorting to such a review may be dispensed
with on the grounds and for the reasons to which
I have already
alluded.
202.
In the result, the failure of FUL to resort to a review in terms of
section 179(5)(d) of the Constitution is no bar to this
application
or the jurisdiction of the court.
The
withdrawal of the disciplinary proceedings and the reinstatement of
Mdluli
203.
FUL challenges the decision to withdraw the disciplinary charges
against Mdluli, made by the Acting Commissioner, Lieutenant-General

Mkhwanazi, on 29 February 2012, as well as the related decision of 27
March 2012 to lift his suspension and to re-instate him to
his
position, on two grounds: firstly, it contends that the Acting
Commissioner took those decisions acting on the dictates of
another,
and therefore failed to discharge his duties under s 207(2) of the
Constitution; and in taking those decisions, the Acting
Commissioner
failed to protect the integrity of the SAPS, and to give effect to
the SAPS Act and Regulations.
204.
The Commissioner has raised defences that FUL has no standing to
challenge the decisions, and the court no jurisdiction to
hear them,
because they are disciplinary labour matters within the prerogative
of the Commissioner and any dispute in that regard
within the
exclusive jurisdiction of the Labour Court. She contended further
that the review of the disciplinary proceedings have
become moot
since new disciplinary proceedings were initiated on 15 May 2012 and
Mdluli was re-suspended on 25 May 2012.
205.
Section 207(2) of the Constitution provides:
“
The National Commissioner must exercise control
over and manage the police service in accordance with the national
policing policy
and the directions of the Cabinet member responsible
for policing.”
206. As the official responsible for managing and
controlling the SAPS, it fell to the Acting Commissioner to take
disciplinary
decisions concerning high-level officials. He had to
exercise the discretion conferred on him himself, and could not
abdicate his
decision-making power to another, nor act on the
instructions of a functionary not vested with those powers.
75
207. In paragraph 45 of the founding affidavit FUL,
alleged that the Acting Commissioner publicly stated in Parliament
that he took
the decisions to withdraw the disciplinary charges on
instruction from authorities “
beyond
”
him. It added that by acting on the
instructions of authorities beyond him, the Acting Commissioner
failed to act independently
in the discharge of his functions, and
accordingly acted inconsistently with section 207 of the
Constitution. Mkhwanazi in his
answering affidavit filed in the
proceedings related to Part A of the notice of motion, did not deny
making the statement or the
inference drawn. In paragraph 4 of his
affidavit he admitted that he had read FUL’s founding affidavit
and the annexures
thereto but went on only to deal with points
in
limine
, without admitting or denying any of
the averments in the founding affidavit.
208. A respondent in motion proceedings is required in
the answering affidavit to set out which of the applicant’s
allegations
he admits and which he denies and to set out his version
of the relevant facts. A failure to deal with an allegation by the
applicant
amounts to an admission. An admission, including a failure
to deny, will be binding on the party and prohibits any further
dispute
of the admitted fact by the party making it, as well as any
evidence to disprove or contradict it.
76
Mkhwanazi must accordingly be taken to have admitted that he acted
under dictation, without independence and inconsistently with
his
constitutional duties.
209.
In paragraph 47 of her answering affidavit, the Commissioner (who was
appointed subsequent to the events at issue in these
proceedings) in
response to the averments in paragraph 45 of the founding affidavit
stated:
“
General Mkhwanazi was quoted out of context. As
I understood and this is what he later clarified was that his
response was in relation
to the issue of the withdrawal of charges,
which falls within the domain of the NPA, which invariably in his
view affected the
purpose of the continued suspension and
disciplinary charges then. General Mkhwanazi never obtained
instructions from above. His
confirmatory affidavit will be obtained
in this regard. Should time permit, I will ensure that the copy of
Hansard being the minutes
or the transcription of the parliamentary
portfolio committee meetings is obtained and filed as a copy which
will clarify the issue.”
210.
No confirmatory affidavit was filed on behalf of Mkhwanazi, despite
the issue being raised repeatedly and it being evident
that the court
would be called upon to assess the probative value of the statement
and to make a factual finding about whether
he had acted under
dictation or not.
211.
In paragraph 14 of his judgment in the Part A proceedings, Mokgoba J
expressed concern about the allegations of political interference
in
the disciplinary process and noted that Mkhwanazi had not disputed
them in his answering affidavit. The learned judge subtly
pointed to
the need for the allegations to be addressed.
212.
As the issue was not adequately dealt with in the answering
affidavits, FUL, in paragraph 64 of the replying affidavit, contested

the explanation by the Commissioner, noted that the confirmatory
affidavit and objective evidence had not been delivered, and
intimated that it would argue that the appropriate factual finding
should be made. It did so again more fully in paragraph 83 of
its
heads of argument. Despite all of these calls to the Commissioner to
file an affidavit from Mkhwanazi explaining the statement,
the
Commissioner did not oblige.
213.
When the matter was raised in argument before me, Mr Mokhari SC,
counsel for the Commissioner, asserted implausibly that the

non-filing of a confirmatory affidavit by Mkhwanazi was merely an
oversight. He undertook to file an affidavit by the close of

proceedings. It was made clear to him that absent a confirmatory
affidavit, the hearsay averment of the Commissioner could not
be
accepted as a tenable and creditworthy denial and that the averment
of FUL was likely to be preferred. After all, Mkhwanazi
is available
as a witness and the Commissioner in her answering affidavit gave an
undertaking to file a confirmatory affidavit.
After an adjournment,
Mr Mokhari informed the court that his instructions were that no
affidavit from Mkhwanazi would be filed.
Nor has any objective
evidence of his alleged statements been provided, notwithstanding the
Commissioner’s tender in this
regard. Mr Maleka predictably
submitted that the most credible explanation for the non-filing is
that neither Mkhwanazi nor Hansard
supports the Commissioner’s
interpretation. The allegation has always been that Mkhwanazi acted
under the unauthorised and
unwarranted dictates of persons who had no
constitutional or legal authority over or interest in the decision.
Despite having had
ample opportunity, he has not refuted that
allegation.
214.
In the premises, the Commissioner’s explanation is untenable
and must be rejected. The explanation is irreconcilable
with the
Acting Commissioner’s clear statement. The statement that he
was instructed by authorities “
beyond
”
him is unambiguous and cannot bear the meaning that the Commissioner
contends for. Mkhwanazi was not subject to the authority
of or any
instruction by the NPA.
215.
That Mkhwanazi dropped the disciplinary charges on orders from above,
is furthermore borne out by the Rule 53 record filed
on his behalf.
The record he supplied comprises nothing more than two letters
addressed to Mdluli, one notifying him of the withdrawal
of the
disciplinary charges against him and the other advising him of his
re-instatement. There is no charge sheet or correspondence
dealing
with the allegations or the process to be followed. From this it may
be reasonably inferred that Mkhwanazi did not apply
his mind to the
facts at all, because he was inclined on the basis of instructions
from beyond to stop the process irrespective
of the merit or
otherwise of that action.
216. The inescapable finding is that the decisions of
the Acting Commissioner to withdraw the disciplinary charges and to
re-instate
Mdluli as head of Crime Intelligence were taken in an
attitude of subservience pursuant to an unlawful dictation from a
person
unknown, who was “beyond” the Acting Commissioner.
They were therefore unlawful and invalid. An abdication of power

violates the principle that the responsibility for a discretionary
power rests with the authorised body and no one else.
217.
The second prong of FUL’s attack on these decisions is that the
Acting Commissioner failed to protect the integrity of
SAPS and to
abide by its legislative framework. Every organ of state is required
to exercise the powers conferred upon it accountably,
responsively
and openly, and to protect the integrity of the institution by
ensuring the proper exercises of powers by its functionaries.
77
Congruent with that, the Commissioner is required to maintain an
impartial, accountable, transparent and efficient police service.
78
The SAPS, in turn, is tasked with preventing, combating and
investigating crime, and with upholding and enforcing the law.
79
218.
To ensure the proper functioning of the SAPS, the Commissioner, in
discharging his obligations under section 11 of the SAPS
Act, must
protect and give effect to SAPS Discipline Regulations.
80
These provide that serious misconduct must be referred to
disciplinary proceedings
81
and that, where there is strong evidence to suggest that the member
will be dismissed, the member must be suspended.
82
A suspension is a precautionary measure.
219.
By withdrawing the disciplinary proceedings against Mdluli and
allowing him to resume his senior position in the SAPS when
there
were serious and unresolved allegations of misconduct against him,
which called into question his integrity, the Acting Commissioner

frustrated the proper functioning of the SAPS Act and the Discipline
Regulations. He also undermined the integrity of the SAPS
and failed
to ensure that it operated transparently and accountably. His conduct
could only serve to damage public confidence in
the SAPS,
particularly where no reasons were advanced for that decision and in
the face of public disquiet about possible political
interference.
220.
The decisions to withdraw the disciplinary charges and to re-instate
Mdluli were accordingly taken in dereliction of the Acting

Commissioner’s constitutional and statutory duties to control
and manage the SAPS in any open, transparent, accountable,
impartial
and efficient manner, and fall also to be set aside on that basis.
221.
On both legs, the review sought by FUL is a rule of law review and it
is unnecessary to locate the review grounds within the
provisions of
PAJA, or to determine whether the action constituted administrative
action for that purpose.
83
The decisions are illegal for both the reasons advanced.
Standing,
jurisdiction and mootness in relation to the decision to withdraw the
disciplinary charges
222.
Rather than engaging with the substance of the claims of illegality,
the Commissioner confined herself to formal defences.
As mentioned,
she contended that FUL lacks
locus standi
to bring this review, that this court has no jurisdiction over it,
and that the review of the decisions is, in any event, moot
or
academic.
223.
Neither the Commissioner nor the NDPP questioned FUL’s public
interest standing to review the withdrawal of criminal
charges
against Mdluli. But the Commissioner contended that FUL has no
standing to challenge the decision to withdraw disciplinary
charges
against Mdluli and to re-instate him to his post on the grounds that
those decisions are labour decisions that are only
liable to
challenge by a party to the employment contract at issue. This is not
correct. As discussed, the Commissioner is required,
under s 207(2)
of the Constitution, to manage the SAPS and to maintain the
discipline and integrity of the force. The disciplinary
powers are
public powers and the fitness of Mdluli to hold a high ranking
position in the SAPS is a matter of public concern. As
Mr Maleka
submitted, the issues have implications for public order and
legitimacy of SAPS as a law-enforcement body. For as long
as the
disciplinary allegations against Mdluli remain unresolved, his
presence in the senior echelons of the SAPS will diminish
public
confidence. The disciplinary decisions are therefore public in
nature, and liable to review on the grounds of illegality,
at the
instance of FUL acting in the public interest.
224. The Commissioner’s claim that this court has
no jurisdiction in terms of section 157(1) and (2) of the Labour
Relations
Act
84
(“the LRA”) to review the disciplinary decisions is
similarly unfounded. These provisions read:
(1) Subject to the Constitution and section 173, and
except where this Act provides otherwise, the Labour Court has
exclusive jurisdiction
in respect of all matters that elsewhere in
terms of this Act or in terms of any other law are to be determined
by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with
the High Court in respect of any alleged or threatened violation of
any fundamental
right entrenched in Chapter 2 of the Constitution of
the Republic of South Africa, 1996, and arising from -
(a) employment and from labour relations;
(b) any dispute over the constitutionality of any
executive or administrative act or conduct, or any threatened
executive or administrative
act or conduct, by the State in its
capacity as an employer; and
(c) the application of any law for the administration of
which the Minister is responsible.”
225.
The Commissioner argued that the relief sought by FUL is in effect a
suspension from employment. The order obtained in Part
A proceedings
interdicted Mdluli from discharging any function or duty as an
employee of SAPS. Consequently, Mdluli has been suspended
from his
employment. It was argued that the suspension of Mdluli can only be
done in compliance with the SAPS Discipline Regulations
read with
section 186(2) of the LRA. Since the Labour Court has exclusive
jurisdiction in terms of section 157(1) to deal
inter
alia
with unfair labour practices, it was
submitted that the High Court may not adjudicate such matters. The
argument went further,
asserting in addition that the High Court can
only assume jurisdiction over a labour matter if it involves a Bill
of Rights violation
as contemplated by section 157(2) of the LRA.
226.
Section 157(1) of the LRA confirms that the Labour Court has
exclusive jurisdiction over any matter which the LRA prescribes

should be determined by it, which includes the power to review unfair
labour practice determinations by bargaining councils or
the
Commission for Conciliation Mediation and Arbitration (“the
CCMA”). In terms of section 191 of the LRA, disputes
about
unfair labour practices must be referred either to the CCMA or a
bargaining council with jurisdiction, and the award of such
body is
reviewable by the Labour Court. The labour forums, it is correct, do
indeed have exclusive power to enforce LRA rights
to the exclusion of
the High Courts. However, the High Courts and the Labour Courts have
concurrent jurisdiction to enforce common-law
contractual rights and
fundamental rights entrenched in the Bill of Rights insofar as their
infringement arises from employment.
85
227.
The argument that the jurisdiction of the High Court is excluded on
account of the dispute being one regarding an unfair labour
practice
is fundamentally misconceived and wrong, being based upon a
misunderstanding of the relevant statutory provisions. It
is
predicated on the false supposition that the present case involves an
unfair labour practice. It most certainly does not. The
relevant part
of the definition of an unfair labour practice in section 186(2) of
the LRA reads:
“
Unfair labour practice”
means any unfair act
or omission that arises between an employer and an
employee
involving—(b)
the unfair suspension of an employee”
It
must be read with section 191(1) of the LRA which provides:
“
(1)
(
a
)
If there is a
dispute
about the fairness
of a
dismissal
,
or a
dispute
about
an unfair labour practice, the dismissed
employee
or the
employee
alleging the unfair
labour practice may refer the
dispute
in writing to—
(i) a council……; or
(ii) the commission, if no council has jurisdiction”
It
is thus clear from the definition that an unfair labour practice can
only “arise between an employer and an employee”
and from
the procedural provision that only an employee can refer an unfair
labour practice dispute to the CCMA or a bargaining
council.
228.
Notwithstanding section 157(1) of the LRA, other
existing
common law and statutory causes of action remain available to
litigants, even in cases that arise factually out of an employment

relationship between an organ of state and an individual. In
Gcaba v Minister of Safety and Security and Others
86
the CC explained the position thus:
“
Furthermore, the LRA does not intend to destroy
causes of action or remedies and section 157 should not be
interpreted to do so.
Where a remedy lies to the High Court, section
157(2) cannot be read to mean that it no longer lies there and should
not be meant
to mean as much. Where the judgment of Ngcobo J in
Chirwa
speaks of a
court for labour and employment disputes, it refers to labour-and
employment-related disputes for which the LRA creates
specific
remedies. It does not mean that all other remedies which might lie in
other courts, like the High Court and Equality Court,
can no longer
be adjudicated by those courts. If only the Labour Court could deal
with disputes arising out of all employment relations,
remedies would
be wiped out, because the Labour Court (being a creature of statute
with only selected remedies and powers) does
not have the power to
deal with the common-law or other statutory remedies”
229.
The only jurisdiction removed from the High Court by section 157 of
the LRA, therefore, is that in respect of those causes
of action
which the LRA prescribes should be dealt with by the Labour Court,
and for the most part that is confined to the review
of unfair
dismissal and unfair labour practice awards, and the adjudication of
operational requirement dismissals and unfair employment

discrimination. The High Court retains its jurisdiction over all
other causes of action. In fact, section 157(2) of the LRA takes

nothing away from the High Court’s jurisdiction. It merely
confers a concurrent human rights jurisdiction on the Labour Court
in
respect of Bill of Rights violations in the employment context, which
it otherwise would not have enjoyed. It does not restrict
the
jurisdiction of the High Court, as the Commissioner incorrectly
assumes. The purpose of the provision is to give jurisdiction
to the
Labour Court not to remove it from the High Court. There is
accordingly no merit at all in the submission that the High
Court
must establish a Bill of Rights violation before it may “assume
jurisdiction” over a labour matter. The Commissioner’s

argument misconstrues the wording and import of the subsection; she
has it the wrong way round.
230.
Likewise, FUL’s challenge to the Acting Commissioner’s
disciplinary decisions does not involve an unfair act or
omission
that arises between an employer and an employee
involving
the unfair suspension
of an employee. The
mere fact that the remedy appointed by the court may be akin to a
suspension is not sufficient for the dispute
to be categorised as an
unfair labour practice. A dispute in order to be an unfair labour
practice, as I have said, must be between
an employee and his or her
employer and must arise in the employment relationship. The dispute
between FUL and the Commissioner
is not one which falls within the
employer-employee nexus, but one which raises issues concerning the
legality (and, consequently,
the constitutionality) of the Acting
Commissioner’s decisions, and his application and
interpretation of the SAPS Act and
the Regulations. It is also a
matter that affects the complainants’ and the public’s
constitutional rights to the protection
of the rule of law. The
effects of the decisions on Mdluli, which may well be the subject of
an employment dispute, are not the
subject of this application.
231.
The review of the Acting Commissioner’s disciplinary decisions
accordingly falls within the jurisdiction of this court.
232.
The Commissioner’s contention that the review of the Acting
Commissioner’s disciplinary decisions has become academic

cannot be sustained either. She says the issue is now moot because
disciplinary proceedings have been “instituted”
against
Mdluli and he is currently under suspension. The original
disciplinary charges against Mdluli were dropped and he was
re-instated in March 2012. It is common cause that Mdluli was
re-suspended on 25 May 2012, shortly after this application was
launched.
Although it has been stated that the intention was to
discipline Mdluli it is not clear on what disciplinary charges.
Neither the
charges in the original disciplinary proceedings nor the
new disciplinary charges have been disclosed in the Rule 53 record on
behalf of the Commissioner, or in any of the answering affidavits.
There is no evidentiary basis to assume that the disciplinary
charges
and reasons underlying the most recent suspension are the same as the
previous occasion; indeed, to the contrary, there
are indications
that his suspension may relate to other charges related to the
defrauding of the SSA. The relief sought by FUL
is for Mdluli to be
arraigned on all of the original charges.
233.
But even if we accept that the charges are the same, the court has
not received any assurance from the Commissioner that she
will not
allow them to be dropped again. Indeed, but for the order of Makgoba
J, Mdluli would have been within his rights to return
to work in late
July 2012. In terms of the Discipline Regulations, if an employee is
suspended with full remuneration, the
employer
must hold a disciplinary hearing within sixty
calendar days
from the
commencement of the suspension. Upon the expiry of the sixty days,
the chairperson of the hearing must take a decision
on whether the
suspension should continue or be terminated.
87
It follows that a failure to convene disciplinary proceedings will
result in the suspension automatically lapsing. Mr Mokhari
was
unable to give the court an assurance that a hearing had been
convened at which the chairperson had taken a decision on whether
the
suspension should continue or be terminated. The suspension in terms
of the regulations has accordingly probably lapsed. That
fact alone
disposes of the claim of mootness.
234. Moreover, there is no evidence of any serious
intent to proceed with the disciplinary process or to finalise the
matter, despite
Mdluli having been suspended again more than a year
ago. Yet the Commissioner in these proceedings seeks to discharge the
interdict
granted by Makgoba J on the spurious jurisdictional grounds
just discussed, without conceding that the disciplinary proceedings

should not have been withdrawn and without furnishing any
undertakings that they will be pursued to finality. The Commissioner

wants the interdict discharged and is happy for the disciplinary
process to lapse. She apparently sees no need to place any obstacle

in the way of Mdluli’s return to work, despite her
constitutional duty to investigate the allegations against him and
the
unfeasibility of his holding a position of trust at the highest
level in SAPS until the truth is established in a credible process.

For as long as there are serious unresolved questions concerning
Mdluli’s integrity, he cannot lawfully act as a member and

senior officer of the SAPS, or exercise the powers and duties
associated with high office in the SAPS.
88
235.
The review of the Acting Commissioner’s decisions is for those
reason by no means academic. There remains a live dispute
between the
parties, and any relief granted will have practical effect.
89
Remedies
236.
The automatic consequence of my findings in relation to the
withdrawal of the criminal charges is that the charges will revive.

FUL however seeks in addition an order directing that the fraud and
corruption charges be re-enrolled and prosecuted without any
further
delay. Such is permissible in terms of section 172(1)(b) of the
Constitution and section 8 of PAJA which empower the court
on review
to grant an order that is just an equitable. Given the respondents’
equivocal stance and their dilatory and obstructive
approach to these
proceedings, it is necessary to expedite the prosecution not only in
the public interest but also in the interests
of Mdluli who cannot
resume his duties while the charges are pending.
237.
Counsel for the NDPP has argued in relation to the criminal charges
that they should be referred back to the NDPP for a fresh
decision
instead of the court ordering a prosecution. There may be polycentric
issues around the prosecution in relation to the
evidence and
possible defences, so he contended, which will make the prosecution
difficult. I would venture the old adage: “where
there is a
will there is a way”. In the hands of skilled prosecutors,
defence counsel and an experienced trial judge, I am
confident that
justice will be done on the evidence available, leading as the case
may be to convictions or acquittals on the various
charges in
accordance with the law and justice. But more than ever, justice must
be seen to be done in this case. The NDPP and
the DPPs have not
demonstrated exemplary devotion to the independence of their offices,
or the expected capacity to pursue this
matter without fear or
favour. Remittal back to the NDPP, I expect, on the basis of what has
gone before, will be a foregone conclusion,
and further delay will
cause unjustifiable prejudice to the complainants and will not be in
the public interest. The sooner the
job is done, the better for all
concerned. Further prevarication will lead only to public disquiet
and suspicion that those entrusted
with the constitutional duty to
prosecute are not equal to the task.
238.
The same can be said with regard to those responsible for the
disciplinary process.
239.
Accordingly, the orders sought by FUL are appropriate, just and
equitable.
240.
With regard to the question of costs, Mr Maleka, assisted by Ms
Yacoob and Ms Goodman, together with their instructing attorneys,

acted on behalf of FUL
pro bono
and in the public interest. A costs order must accordingly be
restricted to the recovery of disbursements.
Orders
241.
The following orders are made:
(a) The decision made on or about 5 or 6 December 2011, as the case
may be, by the third respondent in terms whereof the criminal
charges
of fraud, corruption and money laundering instituted against the
fifth respondent under case number CAS 155/07/2011 were
withdrawn, is
hereby reviewed and set aside
(b) The decision made on 2 February 2012 by or on behalf of the first
respondent in terms whereof the criminal charges of murder,

kidnapping, intimidation and assault with intent to cause grievous
bodily harm and defeating the ends of justice under case number
CAS
340/02/99 were withdrawn, is hereby reviewed and set aside.
(c) The decision made on 29 February 2012 by or on behalf of the
second respondent in terms whereof the disciplinary proceedings

instituted by the second respondent against the fifth respondent were
withdrawn, is hereby reviewed and set aside.
(d) The decision made on 31 March 2013 by or on behalf of the second
respondent in terms whereof the fifth respondent was reinstated
as
Head of Criminal Intelligence in the South African Police Services
with effect from 31 March 2012, is hereby reviewed and set
aside.
(e) The first and third respondents are ordered to reinstate
forthwith the criminal charges which were instated against the fifth

respondent under case number CAS 155/07/2011 and case number
340/02/99 and to take such steps as are necessary to ensure that
criminal proceedings for the prosecution of the criminal charges
under the aforesaid cases are re-enrolled and prosecuted diligently

and without delay.
(f) The second respondent is ordered to reinstate disciplinary
charges which had been instituted against the fifth respondent but

were subsequently withdrawn on 29 February 2012, and to take such
steps as are necessary to institute or reinstate disciplinary

proceedings that are necessary for the prosecution and finalisation
of the aforesaid disciplinary charges, diligently and without
delay.
(g) The first, second, third and sixth respondents are ordered to pay
the costs of this application jointly and severally, the
one paying
the others to be absolved on the basis that the applicant’s
attorneys and counsel appear
pro bono
.
(h) The Taxing Master is directed that the applicant’s costs
nevertheless should include all the disbursements and expenses
of the
applicant’s attorneys of record.
JR MURPHY
JUDGE OF THE HIGH COURT
Counsel
for the applicant
: Adv V Maleka SC assisted
by Adv S Yacoob and Adv I Goodman; instructed by Cliffe Dekker
Hofmeyr Inc.
Counsel
for the first and third respondents:
Adv L
Hodes SC assisted by Adv N Manaka and Adv E Fasser; instructed by the
State Attorney.
Counsel
for the second and sixth respondents:
Adv WR
Mokhari SC assisted by Adv M Zulu and Adv DM Matlou;
instructed by the State Attorney
Date
heard:
11 and 12 September 2013
Date
of judgment:
23 September 2013
1
Act 71 of 2008
2
Freedom under Law v Acting Chairperson: Judicial Services
Commission and Others
2011 (3) SA 549
(SCA)
3
Act 32
of
1998
4
Act 68
of 1995
5
Regulations 12 and 13 of the Discipline Regulations published under
the SAPS Act in GNR. 643 GG 28985 on 3 July 2006.
6
Act 40 of
1994.
7
Act 45
of 1988
8
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635
9
Para 21 of the confirmatory affidavit of the first respondent at
page 1758 of the record.
10
Act 40 of
1994
11
Act
58
of 1959.
12
Du Toit,
Commentary on the Criminal Procedure Act
Juta at
1-4T-7
13
Marais NO v Tiley
[1990] ZASCA 40
;
1990
(2) SA 899
(A) at 901E-H.
14
Act 32 of
1998
15
Act 51
of 1977
16
Section 4 of the NPA Act
17
Section 3 of the NPA Act
18
Section 5 of the NPA Act
19
Section 20(3) and (4) of the NPA Act
20
Section 20(3) and (4). of the NPA Act
21
Section 21 of the NPA Act
22
Section 22(4)(b) of the NPA Act
23
Section 22(4)(d) of the NPA Act
24
i.e. one appointed in terms of section 13(1)(a)
25
Section 24(4)(c)(ii)(bb) of the NPA Act
26
A DPP is the equivalent of an Attorney-General under the old
legislation.
27
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) at para 8.
28
[2008] UKHL 60
at paras 30-32
29
Matalulu v Director of Public Prosecutions
[2003] 4 LRC 712
at 735-736.
30
R (On the Application of Corner House Research and Others) v
Director of the Serious Fraud Office [
2008] UKHL 60
at para 32
31
Highstead Entertainment (Pty) Ltd t/a “The Club” v
Minister of Law and Order
1994 (1) SA 387
(C)
32
Mitchell v Attorney-General Natal
1992 (2) SACR 68
(N).
33
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) para 38.
34
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at paras 48-49;
Masetlha v the
President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1)
SA 566
(CC) at paras 78-81.
35
Act 3 of 2000
36
In section 33 of the Constitution.
37
Kaunda and Others v President of the Republic of South Africa and
Others
2005 (4) SA 235
(CC) at para 84
38
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) at para 35 .
39
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 36 fn 33.
40
2012 (3) SA 486
(SCA) at para 27
41
Democratic Alliance v President of the Republic of South Africa
and Others
2013 (1) SA 248
(CC).
42
2013 (1) SA 248
(CC) at para 42
43
2010 (3) SA 293
(CC) at paras 65-68.
44
Section
1 of PAJA.
45
Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public
Works and Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) at para 23; and
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
2013 (3)
BCLR 251
(CC) at para 30
46
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) at para 64.
47
Madrassa Anjuman Islamia v Johannesburg Municipality
1917 AD
718
at 712
48
2ed (Juta & Co, Cape Town, 2012) at 241-242,
citing the South African Law Commission (Project 115) “
Report
on Administrative Justice
”
(August 1999)
49
2012 (3) SA 486
(SCA) at para 27
50
2013 (1) SA 248
(CC)
51
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 55
et seq
.
52
Provided when a Special DPP does so, he or she acts in consultation
with the relevant DPP proviso to section 24(3) of NPA Act.
53
The
proviso to section 24(3) of the NPA Act.
54
President of the RSA v SARFU
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 63.
55
2007 (5) SA 642
(C) at para 18.
56
See, for example sections 13(1)(c), 16(3),
22(6)(a) and 43A(9)(b) of the NPA Act.
57
De Villiers v Sports Pools (Pty) Ltd
1975 (2) SA 253
(RA) at
261
58
1981 (3) SA 1200 (AD)
59
2010 (4) SA 1
(CC) at para 120
60
South African Defence and Aid Fund v Minister of Justice
1967
(1) SA 31
(C) at 34G-H
61
Democratic Alliance and Others v Acting National Director of
Public Prosecutions and Others
2012 (3) SA 486
(SCA) at para 27.
62
Minister of Safety and Security v Sekhoto and Another
[2011] 2 All SA 157
(SCA)
63
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at paras 48-49;
Masetlha v the
President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1)
SA 566
(CC) at paras 78-81.
64
Democratic Alliance v President of the Republic of South Africa
and Others
2013 (1) SA 248
(CC).
65
Albutt v Centre for the Study of Violence and
Reconciliation and Others
Albutt
v Centre for the Study of Violence and Reconciliation and Others
2010 (3) SA 293
(CC) at paras 65-68.
66
That obligation flows from the rule of law and
para 3 of Part 5 of the Prosecution Policy.
67
Prosecution Policy para 6(a).
68
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) at para 37.
69
Section
7(7) of the Intelligence Services
Control Act
40 of 1994.
70
De'ath (substituted by Tiley) v Additional
Magistrate, Cape Town
1988 (4) SA 769
(C) at 775G.
71
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
72
See generally Hoexter
Administrative Law in South Africa
at
538 et seq
73
1999 (4) SA 367
(T) at 372G-H
74
2010 (4) SA 327
(CC) para 38
75
President of the Republic of South Africa and Others v SARFU
2000
(1) SA 1
(CC) at paras 38- 41
76
Water Renovation (Pty) Ltd v Gold Fields of SA Ltd
[1993] ZASCA 169
;
1994 (2)
SA 588
(A) 605H.
77
Section 195(1) of the Constitution; see also
Democratic Alliance v President of the Republic of
South Africa and Others
2012 (1) SA 417
(SCA) at para 66
78
Section 11(1) of the SAPS Act. See also section
195(1)(e)(f) and (g) of the Constitution.
79
Section 205(3) of the Constitution.
80
GNR 643 GG 28985 3 July 2006.
81
Regulation 12(1) provides:
“
Subject to
regulation 6 (2), a supervisor who is satisfied that the
alleged misconduct is of a serious nature and justifies
the holding
of a disciplinary hearing, must ensure that the investigation into
the alleged misconduct is completed as soon as
reasonably possible
and refer the documentation to the
employer
representative
to
initiate a disciplinary enquiry.”
82
Regulation 13.
83
The decisions to suspend Mdluli and to institute
disciplinary proceedings against him were made pursuant to the
powers conferred
by the SAPS Discipline Regulations. The revocation
of those decisions was in terms of the same public power. A decision
by an
organ of state to abandon disciplinary proceedings against a
high-ranking police official and to re-instate him to his post while

matters concerning his honesty and respect for the law remain
unresolved is public in nature. It affects the security and the

stability of South Africa, and goes to the accountability of its
officials. The decisions have direct external legal effect,
and
affect the public’s right to have the alleged misconduct
against a high-level police official assessed and finally

determined. For those reasons, FUL submits, not unconvincingly,
that the decisions constitute administrative action liable to
review
under PAJA.
84
Act 66 of 1995
85
Makhanya v University of Zululand
2010 (1) SA 62
(SCA) at
para 18, and section 157(2) of the LRA
86
2010 (1) SA 238
(CC) at para 73
87
Regulation 13(4).
88
Democratic Alliance v President of the Republic of South Africa
and Others
2013 (1) SA 248(CC).
89
President,
Ordinary Court Martial and Others v Freedom of
Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC) at para 16