FUL v NDPP (Gen Mdluli) - Founding Affidavit (Dr Ramphele)

7/31/2019 FUL v NDPP (Gen Mdluli) - Founding Affidavit (Dr Ramphele)

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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

CASE NO.

In the matter between:

Freedom Under Law Applicant

and

The National Director of Public Prosecutions First Respondent

The National Commissioner: South African

Police Service Second Respondent

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

Founding Affidavit

I, the undersigned,

Dr Mamphela Aletta Ramphele

do hereby make oath and state the following:



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A. Introduction

1.

1.1. I am a member of the International Advisory Board of Trustees

of Freedom Under Law (“FUL”). I am a chairman and director of

companies, previously a Vice-President of the World Bank in

Washington and Vice-Chancellor of the University of Cape Town.

I qualified and worked as a medical practitioner in community

health. As a Black Consciousness leader I was detained,

subjected to banning orders and banished to a remote area of

the then Transvaal.

1.2. Throughout my life I have been committed to the advancement

of democracy and social justice (inter alia I co-authored the

Second Carnegie Report on Poverty in South Africa), and more

latterly to constitutionalism and the rule of law. I am a member

of the International Advisory Board of the applicant. I have been

authorised by the Board of Trustees of FUL to bring this

application on behalf of FUL and to make this affidavit on its

behalf.



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1.3. The facts I describe herein fall within my personal knowledge,

unless I state otherwise or the context of what I say makes it

clear that they do not. I confirm that those facts are, to the best

of my knowledge and belief, true and correct.

1.4. Where relevant and necessary, I shall make legal submissions,

based on the legal advice I have received from FUL’s legal

representatives in the course of the preparation of this affidavit.

I verily believe that the legal advice concerned is correct and

rely on it in support of this application.

2. I make this affidavit on the strength of information gathered by and on

behalf of the applicant relating to the decisions that are sought to be

reviewed, and a report as well as affidavits made by members of the

investigating team, Colonel Kobus Demeyer Roelofse and Lieutenant-

Colonel Peter Janse Viljoen, who investigated criminal charges against

General Mdluli. I shall also refer (in the urgent circumstances in which

this application is brought, more fully described below) to media reports

on the decisions to withdraw criminal and disciplinary charges against

General Mdluli and thereafter to reinstate him as the head of crime

intelligence of SAPS. Where relevant, I refer to these source materials in

support of my averments. Where I refer to certain public statements or

media reports, I do so on the basis of my understanding that none of



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these have been repudiated by any of the respondents. I accordingly

believe them to be true.

3. I have been advised that some of the evidence to which I refer is, by its

nature, hearsay. I have approached individuals who have personal

knowledge of the facts to confirm hearsay statements to which I refer.

These persons include Advocate Breytenbach's attorney, Mr Gerhard

Wagenaar, Colonel Roelofse. I was informed by Mr Wagenaar that

Advocate Breytenbach is unable to depose to a confirmatory affidavit

because she has been advised by him that she is bound by a

confidentiality agreement. I was informed by Colonel Roelofse that he is

unable to depose to a confirmatory affidavit because he has been

advised that it constitutes a conflict of interest in respect of his employer.

4. I have been advised that not only is the material on which I rely

admissible in the circumstances of an urgent application, for reasons

which I understand are further a matter for legal argument, but that in

any event it would be in the interests of justice for the hearsay

statements I make to be admitted, despite their hearsay character,

because:

4.1. First, in review proceedings such as the present, relevant

evidence and source documents relating to the decisions to be



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reviewed is in the hands of the respondents or persons under

their control. The applicant has not yet obtained access to

documents which form part of the review record.

4.2. Second, the hearsay statements relate to matters which have

been reported widely in the media and none of the respondents

have repudiated those statements or provided a version

contrary to those statements.

4.3. Third, the respondents have made the impugned decisions

without any public explanation of those decisions, despite their

far-reaching implications of those. As I indicate below, the

respondents’ lack of explanation for their decisions violate their

fundamental constitutional obligation of transparency,

openness and accountability, set out in section 1(d) of the

Constitution.

4.4. Fourth, the review both deals with subject matter of significant

public interest, and is itself in the public interest. The evidence,

primarily having been gleaned from the media, is in the public

domain, and is under the control of the respondents. No

member of the public would be able to bring an application to

court based on matters of public importance reported in the



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media, unchallenged as to veracity by the respondents to date,

without reliance on such material.

4.5. Fifth, there is no material prejudice which the respondents

would suffer, if the hearsay statements are admitted. Any

prejudice that may be suffered is slight weighed against the

public interest arising from the need to justify the constitutional

legality, validity and rationality of the impugned decisions.

4.6. Sixth, the present application includes the relief sought in Part A

of the notice of motion on an urgent basis, and there is a

compelling need for this honourable Court to adjudicate that

relief as soon as possible.

5. The applicant furthermore will in due course also seek leave to expedite

the hearing of the final relief sought in Part B of the notice of motion.

The grounds on which the applicant seeks the necessary leave are the

following:

5.1. The way in which General Mdluli has been dealt with by the

respondents reflects an extraordinary degree of lack of

accountability and a breach of the culture of justification under



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the Constitution which our courts have sought to impress on

those who exercise public power.

5.2. The reinstatement of General Mdluli into office, without

prosecution of criminal and disciplinary charges against him,

has caused serious controversy, material lack of trust within and

outside the ranks of SAPS, as well instability in SAPS, more

particularly at its leadership level. After his reinstatement,

General Mduli has made public statements which have added to

the mistrust and instability. For instance, he claims that certain

senior members of SAPS, including the Provincial Commissioner

of Police in Gauteng, General Mzwandile Petrus, and the head of

the Hawks, General Anwa Dramat, are part of a conspiracy to

remove him from SAPS.

5.3. Although the claim of conspiracy has been denied by senior

members of SAPS who are accused of conspiracy, particularly

General Petrus, the claim itself has generated further mistrust

and instability in the SAPS, to such a degree that the sixth

respondent has himself had to intervene, by making an

unexpected announcement in Parliament on Thursday, 10 May

2012.



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5.4. In his public announcement, the sixth respondent has described

the accusations at the senior level of SAPS as unfortunate, and

serious enough to warrant investigation by a task team he has

established for the purpose. He also indicated that pending the

conclusion of the task team’s mandate, General Mdluli will be

‘redeployed’ from his current position, with immediate effect, to

another post, not yet determined, but which would be identified

by the second respondent. A copy of the sixth respondent’s

statement is annexed hereto and marked “FA 1.1”.

5.5. The ‘redeployment ’ of General Mdluli, as announced by the sixth

respondent in these vague terms, patently does not resolve the

problem caused by his reinstatement, and his far-reaching

claims of conspiracy. By his conduct, the sixth respondent

accepted that there was a need to act, but has not initiated

suspension proceedings, or any other measure which would

remove General Mdluli from active daily service in SAPS as a

high-ranking officer. He remains vested with the authority of his

rank, and he remains on active service, able to exercise the

powers vested in a police lieutenant-general under the Police

Act and related legislation.

5.6. I am aware that (apart from the nearly 600 more junior officers

of SAPS currently suspended pending determination of serious



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allegations of criminality related to them) there is a striking

recent instance where a senior member of SAPS was ultimately

suspended by the President, pending the outcome of a inquiry

into allegations of improper behaviour made against him. I refer

in this regard to the suspension of the Commissioner himself,

General Bheki Cele. A similar suspension applied to his

predecessor, General Jackie Selebi. As far as I am aware no

reason has been given why a similar course was not followed in

the present case.

5.7. The claim of conspiracy made by General Mdluli is itself

sufficient cause to suspend him from office, pending the

investigation of that claim. The decision to redeploy General

Mdluli shows that his treatment is partial and selective. In the

light of the criminal and disciplinary charges which had been

instituted against General Mdluli but were withdrawn, the

decision to not to suspend him is arbitrary and irrational.

6. In the light of the above considerations, this application is brought in

two parts:

6.1. In Part A the applicant seeks urgent interim relief whose

purpose is ensure that General Mdluli does not perform any



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official functions and duties either as head of Crime Intelligence

in SAPS or in connection with or arising from the redeployment

foreshadowed by the sixth respondent in annexure “FA1.1”

hereto. The grounds on which the urgent interim relief is sought

are set out in section D of this affidavit.

6.2. In Part B of the notice of motion the applicant seeks the review

and setting aside of the decisions set out in section E of this

affidavit. The grounds on which these decisions are sought to be

reviewed are described in both sections C and H of this affidavit.

7. In addition to the above relief the applicant seeks the mandatory orders

described in the notice of motion. The purpose of these orders is to

remedy all the unlawful and unconstitutional decisions and conduct of

the respondents, arising from the impugned decisions. Once granted, the

mandatory orders will ensure that the respondents properly fulfill their

functions and duties in a manner that is consistent with the Constitution,

and gives effect to the rule of law and principle of legality. In section I of

this affidavit I deal with the basis on which the applicant pursues the

mandatory orders.



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B. The parties

8. The applicant is Freedom Under Law, a non-profit company

incorporated and registered in the Republic of South Africa (“the

Republic”) in accordance with the then provisions of section 21 of the

Companies Act, 61 of 1973, now section 10 of the Companies Act, 71 of

2008, as amended.

9. The applicant was established in January 2009 and has offices of record

in the Republic and in Switzerland. Its registered offices in the Republic

are at PWC, 19 Oewer Park, Rokewood Avenue, Stellenbosch.

10. The first respondent is Advocate Nomgcobo Jiba, the acting National

Director of Public Prosecutions, who was appointed as such by the

President of the Republic, on 28 December 2011, after the suspension

from office of the incumbent, Mr Menzi Simelane, as a result of the

judgment of the Supreme Court of Appeal in Democratic Alliance v The

President of the RSA & others 2012 (1) SA 417 (SCA), delivered on 1

December 2011.

11. The address for service of the first respondent within the area of

jurisdiction of this court is care of the State Attorney, SALU Building, 316

Andries Street (corner Andries and Schoeman Streets), Pretoria.



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12. By virtue of the provisions of section 179(2) of the Constitution, as well

as Chapter 4 of the National Prosecuting Authority Act, 32 of 1998, as

amended (“the NPA Act”), the first respondent has 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.

13. The first respondent is joined in these proceedings by virtue of the fact

that she, or employees of the National Prosecuting Authority purporting

to act on her behalf, or on the authority of her office, took a decision to

withdraw criminal proceedings against General Mdluli. As I shall

indicate more fully below, the decision to withdraw those criminal

proceedings is unconstitutional, unlawful and invalid and should be

reviewed, on the grounds more fully set out herein.

14. The second respondent is Lieutenant-General Nhlanhla Mkhwanazi, the

acting National Commissioner of South African Police Service. He was

appointed as such by the President of the Republic, when General Bheki

Cele was suspended from office as the National Commissioner on or

about 24 October 2011.

15. The address for service of the second respondent within the area of

jurisdiction of this court is also that of the State Attorney, Pretoria.



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16. By virtue of the provisions of section 207(2) of the Constitution of the

Republic of South Africa, 1996 (“the Constitution”), read with

section 205(3) thereof, as well as the relevant provisions of Chapter 5 of

the South African Police Service Act, 68 of 1995, as amended (“the SAPS

Act”), and the Regulations made in terms thereof, the second respondent

is the head of the South African National Police Service (“SAPS”) and is

required, amongst other things, to:

16.1. ensure that he and other members of SAPS diligently fulfil their

constitutional and statutory functions and 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;

16.2. institute disciplinary action and prosecute disciplinary

proceedings against any member of SAPS who is accused of and

charged with misconduct, and to suspend from office, with or

without payment of employment benefits, such a member,

pending the outcome of disciplinary proceedings.

17. The second respondent is joined in these proceedings by virtue of the

fact that on 27 March 2012, he and/or other members of SAPS acting

under his control or direction, took a decision to terminate disciplinary



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proceedings which had been instituted against General Mdluli and to

withdraw charges of misconduct that had been brought against General

Mdluli, and thereafter to immediately reinstate him in office as the

National Divisional Commissioner for Crime Intelligence within SAPS.

18. As I shall show more fully below, the decision to terminate disciplinary

proceedings, and to withdraw charges of misconduct, against General

Mdluli, and also to reinstate him as the National Divisional

Commissioner for Crime Intelligence is unconstitutional, unlawful and

invalid, and is subject to review on the grounds more fully set out below.

19. The second respondent is also joined herein by virtue of the fact that the

urgent interim relief sought in the notice of motion affects him. Should

that relief be granted he will be required to give effect to it.

20. The third respondent is Advocate Lawrence Mrwebi who is the head of

the Specialised Commercial Crime Unit within the National Prosecuting

Authority, appointed as such on 25 November 2011.

21. The address of service of the third respondent within the area of




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22. The third respondent is joined in these proceedings by virtue of the fact

that he has been reported in the media, and has not denied the media

reports, as having taken the decision to withdraw charges of murder and

related offences against General Mdluli, and as having instructed the

members of the National Prosecuting Authority in charge of the

prosecution of General Mdluli to withdraw those charges.

23. For the reasons I shall advance below, the decision made by or

attributed to the third respondent is unconstitutional, unlawful and

invalid and is liable to be reviewed and set aside by this court.

24. The fourth respondent is Advocate Faith Radebe, the Inspector General

of Intelligence, appointed in terms of section 7 of the Intelligence

Services Oversight Act, 40 of 1994, on 7 April 2010.

25. The address for service of the fourth respondent within the area of


26. The fourth respondent is joined in these proceedings by virtue of the fact

that she investigated circumstances relating to the purported

withdrawal of criminal charges against General Mdluli, issued a report

and recommended that the criminal charges against General Mdluli

should be reinstated and that he should be prosecuted forthwith.



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27. The fourth respondent is joined in these proceedings by virtue of any

interest she may have. No order is sought against her, unless she

opposes the relief sought herein, in which event, an order as to costs will

be sought against her.

28. The fifth respondent is Lieutenant-General Richard Naggie Mdluli, the

National Divisional Commissioner: Crime Intelligence in the South

African Police Service, appointed as such on 1 July 2009. His place of

residence within the area of jurisdiction of this court known to the

applicant is 24 Kudu Street, Dawn Park, Boksburg, Gauteng Province.

29. General Mdluli has been the subject of a number of allegations and

investigations as detailed in this affidavit. He was suspended, pending a

disciplinary process, on 8 May 2011 and his suspension was lifted on

27 March 2012, when he was immediately reinstated in his employment

as the head of Crime Intelligence in SAPS.

30. In addition, General Mdluli was the subject of criminal charges as

detailed later in this affidavit, including charges of fraud and murder.

The fraud charges were withdrawn on 14 December 2011, while it was

announced on 2 February 2012 that the murder charges would be

withdrawn on 10 April 2012.



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31. The compliance with law of the lifting of General Mdluli’s suspension, of

the withdrawal of both criminal and disciplinary charges against him,

and of his reinstatement as the head of Crime Intelligence in SAPS is the

subject of this application.

32. General Mdluli is cited for his interest in the matter. In the event that he

opposes the relief sought herein, an order as to costs will be sought

against him.

33. The sixth respondent is the Minister of Safety and Security, the member

of Cabinet responsible for SAPS. He is joined in these proceedings by

virtue of the fact that the urgent interim relief sought in the notice of

motion affects him, and he will be required to give effect to it, in the

event it is granted.

34. In respect of the relief sought in Part B of the notice of motion no order

is sought against the sixth respondent, unless he opposes that relief, in

which event a costs order will be sought against him.

35. The address for service of the sixth respondent within the area of




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C. Decisions sought to be reviewed

36. There are four decisions sought to be reviewed in these proceedings. I

describe those decisions in this section of the affidavit.

37. The first is the decision made on 6 December 2011 by the third

respondent in terms whereof the charges brought against of, inter alia,

fraud and corruption, were withdrawn. I shall refer to that decision as

“the first impugned decision”.

38. Immediately after he made the first impugned decision the third

respondent instructed the Public Prosecutor responsible for the

prosecution of the fraud and corruption charges, Advocate C Smith, and

Advocate Smith’s superior, Advocate Glynnis Breytenbach, to withdraw

the charges.

39. The latter had advised the third respondent that there was no basis to

withdraw the charges, as there was strong evidence to support them.

Instead of accepting that advice, the third respondent persisted in his

instruction that the charges against General Mduli be withdrawn.



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40. General Mdluli had already been informed of the third respondent’s

decision, prior to Advocates Smith and Breytenbach having being

informed. This is apparent from a report dated 2 March 2012 prepared

by Colonel Roelofse and addressed to the Commander of the Anti-

Corruption Task Team, annexure “FA1” to this affidavit.

41. The report suggests at paragraph 61 that the third respondent took the

view that only the fourth respondent could investigate the matter, and

that the evidence in the matter was irrelevant to his decision.

42. In consequence the charges were formally withdrawn in the Specialized

Commercial Crimes Court in Pretoria on 14 December 2011.

43. In summary, the first impugned decision is open to review on the

following grounds:

43.1. The person empowered to review a decision to prosecute or not

to prosecute is the first respondent, in terms of section

179(5)(d) of the Constitution.

43.2. The third respondent unlawfully purported to exercise the

power, which power he did not have, acting inconsistently with



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the Constitution, and in violation of the principle of legality and

the rule of law.

43.3. Even if the third respondent were clothed with the power to

review the decision to prosecute General Mdluli, the decision

was taken in the face of overwhelming evidence against General

Mdluli, and against the strong recommendation of Advocate

Breytenbach. It was, in the circumstances, arbitrary, irrational

and taken for no proper purpose.

43.4. A decision in terms of section 179(5)(d) must be taken after

consulting the relevant Director of Public Prosecutions, and

taking representations from relevant parties. The decision taken

by the third respondent appears to be based solely on

representations made by General Mdluli to the third respondent.

The views of the relevant prosecutors were ignored. The

decision is thus inconsistent with the requirements of section

179(5)(d).

43.5. By taking the decision that General Mdluli would not be

prosecuted, in the face of overwhelming evidence, and in

contradiction of the advice of Advocate Breytenbach, the third

respondent also acted irrationally, arbitrarily, for no proper



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purpose and in conflict with section 179(2) of the Constitution

read with section 179(4) and section 1(c) thereof.

43.6. Finally, if the decision was indeed taken on the basis that the

evidence was irrelevant and that only the fourth respondent had

jurisdiction to investigate the matter, the decision was based on

an error of law.

44. The second decision sought to be reviewed was made on 29 February

2012 by the second respondent or other members of SAPS, acting on his

authority, in terms whereof the disciplinary charges he had instituted

against General Mdluli were withdrawn and disciplinary proceedings

initiated to investigate and determine those charges were terminated. I

shall refer to this decision as the “the second impugned decision”.

45. In summary, the second impugned decision is open to review on the

following grounds:

45.1. The second respondent has publicly stated that he was

instructed by authorities “beyond” him to withdraw disciplinary

charges against, and reinstate, General Mdluli.



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45.2. By acting on the instructions of authorities “beyond” him, the

second respondent failed to act independently, without fear,

favour or prejudice, and himself to discharge the function which

vests in his own office. He therefore acted inconsistently with

the provisions of section 207(1) of the Constitution which

impose the constitutional obligation on him to exercise control

over and manage SAPS. He accordingly made the second

impugned decision also in violation of the rule of law and the

principle of legality.

45.3. Additionally, the second respondent is always obliged, in terms

of section 205(3) of the Constitution to protect and promote the

constitutional objects of SAPS, which include the obligation to

uphold and enforce the law.

45.4. The disciplinary charges against General Mdluli were instituted

in accordance with the relevant provisions of the SAPS Act and

the Regulations made in terms thereof.

45.5. By withdrawing the disciplinary charges against General Mdluli,

the second respondent failed to uphold and enforce the SAPS

Act and the Regulations, and therefore acted in breach of the

rule of law and the principle of legality.



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45.6. Finally, the second respondent is responsible for maintaining an

impartial, accountable, transparent and efficient police service,

in terms of section 11 of the SAPS Act read with section 218(1)

of the Constitution of the Republic of South Africa, Act 200 of

1998 (“the Interim Constitution”).

45.7. The withdrawal of the charges against General Mdluli in the

context outlined in this affidavit is patently inimical to an

impartial, accountable, transparent and efficient police service.

Not only do the offences in which General Mdluli is implicated

adversely affect these factors, but where a senior officer in SAPS

is not investigated and disciplined there is no incentive for other

members of the Service to behave in a manner which is

impartial, accountable, transparent or efficient.

45.8. The failure to investigate these charges is therefore a dereliction

of the second respondent’s constitutional and legislative duties.

46. The third impugned decision is the decision by the first respondent, or

persons under her authority, on 2 February 2012, to withdraw the

murder charges against General Mdluli, and instead to refer the matter

to a formal inquest.



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47. In summary, the third impugned decision is open to review on the

following grounds:

47.1. In terms of the relevant provisions of section 179(5)(d) of the

Constitution, the first respondent may decide whether to

withdraw a criminal charge or charges against an accused

person.

47.2. In making such a decision, she is required to act in accordance

with the express provisions of section 179(5)(d)(i) to (iii) of the

Constitution, which require her to make the decision after she

had considered representations from the accused person, the

complainant, and any other relevant third party.

47.3. In this case, the third impugned decision was taken after only

representations made by or on behalf of General Mdluli had

been considered. Representations from complainants and other

victims of the criminal charges brought against General Mdluli

were neither called for nor considered.

47.4. There is a constitutional obligation upon the first respondent to

call for and consider representations from these categories of

affected persons, before she may lawfully make the decision to



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withdraw charges against General Mdluli. She therefore acted

inconsistently with the provisions of section 179(5)(d)(ii) and

(iii) of the Constitution, and also the rule of law and the


47.5. The third impugned decision was taken despite compelling

evidence to prosecute the criminal charges against General

Mdluli, of which the first respondent ought to have been aware.

The decision in the circumstances was arbitrary, irrational and

taken for no proper purpose authorised by law.

47.6. I believe that the first respondent, or an official under her

authority, also requested and obtained a legal opinion from

Senior Counsel which advised that the charges of murder and

related offences should be persisted with, and not withdrawn.

47.7. She therefore acted arbitrarily and irrationally, and in a manner

inconsistent with the provisions of section 179(2), which

requires her to institute and prosecute criminal proceedings on

behalf of the State. By failing to comply with that constitutional

obligation, the first respondent also acted in a manner

inconsistent with the rule of law, and the principle of legality.



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48. The fourth decision sought to be reviewed is the decision made on

31 March 2012 by the second respondent or members of SAPS, acting on

his authority, in terms whereof General Mdluli was reinstated in office as

the National Divisional Commissioner: Crime Intelligence of SAPS. I shall

refer to this decision as “the fourth impugned decision”.

49. The fourth impugned decision is subject to review upon the same

grounds as the second impugned decision. It is also open to review on

the following additional grounds:

49.1. In terms of section 205(2) of the Constitution, SAPS is required

to discharge its constitutional and statutory responsibilities

effectively. It is therefore required, amongst others, to inspire

and engender public trust, faith and confidence in its ability to

fulfil its responsibilities effectively.

49.2. SAPS is also required to be “impartial, accountable, transparent

and efficient”, in terms of section 218(1) of the Interim

Constitution.

49.3. Part of that responsibility is to ensure that SAPS does not

tolerate, and deals effectively with, allegations of corruption and

other unlawful behaviour by individuals within its ranks. That



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responsibility is heightened, and becomes acute, where

allegations of corruption and other criminal conduct are levelled

against a senior member of SAPS who occupies an important

leadership role, such as General Mdluli.

49.4. Where, as here, General Mdluli is implicated in serious criminal

conduct, which includes violent crimes against persons, and

corruption involving state resources, it goes without saying that

the withdrawal of criminal and disciplinary charges against him,

and his reinstatement to a position of leadership in SAPS, will

not only weaken the faith and confidence which the public is

required to have in SAPS, but also destroys the trust which the

public reposes in it.

49.5. By way of example, I refer to the telling remarks made by the

Chairperson of the Portfolio Committee on Police, reported in

the Mail & Guardian article of 17 April 2012, a copy whereof is

annexed hereto and marked “FA2”, in which she expressed his

distrust as follows –

“[Chikunga] earlier referred to controversial cases involving

senior police members, including that of recently reinstated



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crime intelligence head Richard Mdluli, as well as suspended

KwaZulu-Natal Hawks boss Major General Johan Booysen.

‘The head of crime intelligence -- our hope in fighting

crime in this country -- is alleged [to be involved in]

serious misconduct ... What is the feeling ... when the

most senior people in [the police] are suspected of

being involved in criminal conduct such as this?

"What is this supposed to mean? Who is sitting in

front of this portfolio committee? Who must we trust?

Who are you? Can you define yourself to this portfolio

committee so that we know?" Chikunga asked.

She said some of the serious allegations levelled against

some senior members of the police service "manifest a

flagrant violation of the moral integrity expected of police

members or conduct unbecoming that of a police member".

…

Chikunga noted that many of the facts coming to light in

cases against senior members were being exposed by the

media.

‘I’m worried about what this means about the

senior managers in this department, who are not



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able on their own to pick up these matters and

correct them,’ she said.

Chikunga called on Mkhwanazi to provide clarity on the

cases she had highlighted.

‘The head of the Hawks in KZN is … suspected of

being involved in serious misconduct.

‘And for … God’s sake, this is the head of the Hawks,

a specialised unit we’re talking about. Not just any

SAPS member, [but] the head of the Hawks, our

hope… in the fight against organised crime.’

She then said: ‘W ho is sitting in front of us here? Who must

we trust? Who must we not trust?’”

50. I therefore submit that the fourth impugned decision is also open to

review on the ground that it is inconsistent with section 205(2) of the

Constitution, in breach of the rule of law and violates the principle of

legality.



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51. In section H of this affidavit I describe, in detail, the grounds on which

the impugned decisions are open to review, both in terms of the

Constitution and the relevant provisions of the Promotion of

Administrative Justice Act, 3 of 2000, as amended (“PAJA”).

52. I conclude this part of the affidavit by pointing out that there has been

widespread media speculation and public concern about the lack of

reasons and justification by the first to third respondents, concerning

the making of the impugned decisions. None of these respondents has

publicly sought to explain the reasons for and justification of the

impugned decisions. Their silence manifests a failure to act in

accordance with the fundamental values of openness, transparency and

accountability. This, on its own, also renders the conduct of the

respondents unconstitutional, as it violates section 1(d) of the

Constitution.

D. Urgent interim relief

53. In annexure “FA1.1” the sixth respondent made it clear that General

Mdluli will remain in office as a member of SAPS and will fulfil functions

and duties arising from a post which will assigned to him as a result of

his redeployment. That office is yet to be identified by the second

respondent.



31

54. On the sixth respondent’s approach, General Mdluli will remain in office

and perform functions and duties as SAPS member notwithstanding not

only the serious allegations against him, but also despite the fact that a

task team has been established to investigate the claims of conspiracy

which he has now made about his colleagues.

55. I submit that it is intolerable that General Mdluli should remain in office

in the face of serious allegations of criminal conduct against him, and

when he himself has alleged a conspiracy by ranking officers in SAPS. I

say so for the following reasons:

55.1. The primary constitutional and statutory function and duty of

General Mdluli is to combat criminal conduct, and ensure that

crimes are investigated prosecuted by the NPA.

55.2. The allegations against General Mdluli affect the very

foundation of his constitutional functions and duties. He is now

the subject of the very conduct he is required to combat and

ensure that it is investigated and prosecuted.

55.3. For as long as he remains in office the public will lose trust, faith

and confidence in him specifically as a member of SAPS, and



32

generally in SAPS as an organisation to which he belongs. I refer

in this regard to annexure “FA2” hereto.

55.4. Secondly, SAPS must always act, and do so decisively, against

any member who becomes the subject of serious allegations of

criminality of the kind levelled against General Mdluli. Decisive

action in this case required that General Mdluli should not

remain in office, until those allegations are determined in

appropriate forums.

55.5. For as long as General Mdluli remains in office the image of

SAPS as an institution which tolerates criminal conducts in its

ranks will continue. I emphasize that SAPS is dependant upon

the legitimacy of its image to combat crime and earn the respect

and support of the public, which it requires to fulfil that function.

55.6. Thirdly, the second and sixth respondents have not suggested

that SAPS will not be able to perform its constitutional and

statutory functions and duties effectively and efficiently should

General Mdluli not be required to fulfil any functions and duties

as a member of SAPS pending the finalisation of disciplinary and

criminal charges against him. The fact that the second and sixth

respondents took the decision to remove General Mdluli from



33

office as head of Crime Intelligence in SAPS shows that there

would be no such prejudice in the event interim relief is granted.

55.7. Fourthly, the sixth respondent has now instituted a task team to

investigate allegations of conspiracy made by General Mdluli.

55.8. The allegation of conspiracy fundamentally affects the integrity

and stature of those accused of conspiracy. It implies abuse of

power on their part, at the highest leadership in SAPS. It also

suggests abuse of state resources to settle personal scores.

55.9. Should General Mdluli remain in office, pending the outcome of

the investigation, it is inevitable that General Mdluli will be

required to engage with persons he has accused of conspiracy:

he will be required to report to them, or they will be required to

report to him.

55.10. It is intolerable that SAPS officials he has accused of conspiracy

should be required to engage with General Mdluli whilst the

investigation into the claim of conspiracy is not completed. The

ability of SAPS senior members to make vital decisions relating

to their functions and duties will be compromised.



34

55.11. From what I describe in sections E and H of this affidavit the

applicant has shown a prima facie right to the review and

setting aside of the impugned decisions.

55.12. The primary purpose of the present application is to vindicate

the rule of law, and enforce compliance with the Constitution.

The applicant seeks to achieve that purpose in circumstances

where a vitally important law enforcement institution is

affected and its ability to carry out its constitutional and

statutory functions and duties are at stake. It also seeks to do so

in circumstances where the obligation of SAPS to undertake and

prosecute disciplinary proceedings against its own member is at

necessary.

55.13. Should the interim relief not be granted, the applicant will suffer

irreparable harm, as its attempts to uphold the rule of law will

be compromised.

55.14. From what I have described in paragraphs 5, and 53 to 55, the

balance of convenience favours the grant of the interim relief.

55.15. The applicant has no other adequate remedy. By the time the

relief sought in Part B is heard and determined, the damage to



35

the legitimacy and image of SAPS will have been done. This is a

case where there is a continuing adverse impact on an

important law enforcement institution, by reason of continuing

public controversy, because neither the second nor sixth

respondents are prepared to take an obvious and necessary step

against General Mdluli. By failing to act as they should, they have

moreover generated a justifiable public perception of bias

towards him.

56. The applicants have afforded any respondents who choose to oppose the

relief sought in Part A sufficient opportunity to file their opposing

affidavits and to present their case on the date described in the notice of

motion, for the hearing of Part A.

E. FUL’s legal standing

57. FUL brings this application acting in its own interest. It also makes the

application acting on behalf of persons who are unable to act in their

own names. These include complainants and victims in the criminal

charges of kidnapping, assault and intimidation, and family members of

the deceased person (Mr Tefo Abel Ramogibe) in the murder charge, all

of which were brought against General Mdluli. For reasons I shall shortly

describe, these persons are not able to act for themselves in challenging



36

the decisions sought to be reviewed, which evidently adversely affect

them.

58. The applicant also brings the application acting in the interest of the

public. The circumstances in which the impugned decisions were taken,

the palpable violation of the Constitution, the rule of law and principle of

legality, the grave consequences arising from these violations, and the

understandable public outcry arising therefrom, manifestly justify the

applicant’s approach to this court, acting in the interest of the public in

order to vindicate compliance with the Constitution and upholding of

the rule of law. The manifest institutional failure on the part of the

respondents who took the impugned decisions, and their unexplained

silence and lack of justification for their conduct require the court to

remedy the improper exercise of public power immediately, and without

further delay.

59. I proceed to describe the facts and circumstances which justify the

applicant’s standing on each of the above three bases.

Acting in own interest

60. The applicant is actively involved in the promotion of democracy and

law, the advancement of and respect for the rule of law and the principle



37

of legality as the foundation for constitutional democracy in the

Southern African region, more particularly in the Republic. Its board of

directors comprises respected lawyers from South Africa, Botswana,

Namibia and Zimbabwe, namely, retired Justice Johann Kriegler, Ms Elize

Angula, Adv George Bizos SC; Mr Ezra Davids, Ms Beatrice Mthetwa, Mr

Abdool Rahim Khan, Professor Hugh Corder, Advocate Jeremy Gauntlett

SC and Dr Frederick Mostert.

61. The applicant also enjoys the support of an international advisory board

whose members comprise the Right Honourable Lord Steyn, Professor

Shami Chakrabarti, Judge Nathaniel R Jones, Mr Vernon E Jordan, Jnr,

Professor Jeffrey Jowell QC, Sir Sidney Kentridge QC, the Honourable Soli

Sorabjee SC, Archbishop Emeritus Desmond Mpilo Tutu and me.

62. The applicant’s mission is to:

62.1. promote democracy under law and to advance the

understanding and respect of the rule of law and the principle of

legality;

62.2. secure and strengthen the independence of the judiciary, and to

that end, to promote selection, training and advancement of a

judiciary appropriate to the needs of constitutional democracy;



38

62.3. advance the independence and skill of the legal profession in

serving the courts and to enhance communication and

understanding between the judiciary, the legal profession,

academic lawyers, the media and society at large. It also wishes

to promote legal education appropriate to the needs of

constitutional democracy and to protect, promote and advance

freedom of speech and freedom of the media in relation to the

administration of justice and in courts.

63. The applicant has been admitted as an amicus in the following cases:

63.1. Constitutional Court case CCT 53/09 of the Minister of Justice

and Constitutional Development v Nyathi (regarding the

unconstitutionality of the State Liability Act 20 of 1957);1 and

63.2. North Gauteng High Court case 8550/09 of Pikoli v The President

& Others (regarding the unconstitutionality of the dismissal of

the National Director of Public Prosecutions).2

64. The applicant has also instituted review proceedings, acting in its own

interest, on behalf of other persons who could not act in their own name,

1 Now reported – Minister for Justice and Constitutional Development v Nyathi and Others

2010 (4) SA 567 (CC).2 Now reported – Pikoli v President of the Republic of South Africa and Others 2010 (1) SA

400 (GNP).



39

and also in the public interest, in terms of the relevant provisions of

sections 38(a), (b) and (c) of the Constitution. The legal standing of the

applicant to act in that capacity, in order to challenge decisions which

violated the rule of law and principle of legality has been acknowledged

and upheld by the Supreme Court of Appeal.3 The applicant’s standing in

the constitutional challenge to the purported executive extension of the

term of office of the previous chief justice was also ultimately conceded

by the President and Minister of Justice and accepted by the

Constitutional Court.

65. The applicant has also observed the case of Jestina Mukoko v Attorney

General in the Zimbabwe Supreme Court (regarding the barring of

prosecution by reason of egregious breaches by the state of the accused

person’s fundamental rights).

66. I have already indicated, in section C above, the extent to which the

impugned decisions are inconsistent with the Constitution and in

violation of the rule of law and the principle of legality. These violations

directly engage the mission of the applicant to promote democracy

under law, and to advance the understanding and respect of the rule of

law and the principle of legality.

3 Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others 2011

(3) SA 549 (SCA).



40

67. The applicant has a direct interest in ensuring that the impugned

decisions are reviewed, and that the respondents who took those

decisions are directed to comply with the relevant provisions of the

Constitution, the rule of law and the principle of legality.

68. Thus far, no one has sought to initiate review or other legal proceedings

to enforce compliance with the Constitution or the rule of the law by the

respondents who took the impugned decisions in regard to those

decisions. This is despite the widespread public outcry and

condemnation of those decisions. By virtue of its primary mission, the

resources it has and its past experience in litigating and participating in

cases that involved the promotion and upholding of the rule of law, the

applicant is well-suited to bring the present review, acting in its own

interest and to approach this honourable Court for an appropriate

remedy.

Acting on behalf of others who cannot act for themselves

69. In respect of the criminal charges of kidnapping, assault and

intimidation, there are complainants, victims and family members of the

deceased who are known to the first to third respondents and whose

rights and interests were ignored by the respondents when they took

the impugned decisions.



41

70. It is clear that the family members of the deceased have been drastically

affected by the murder of the deceased. They have a right to human

dignity which entitles them to expect that justice will not only be done

but will also be seen to be done in respect of the murder charges

brought against General Mdluli and his co-accused. The same

fundamental considerations apply in respect of the complainants and

victims in the criminal charges of kidnapping, assault and intimidation

brought against General Mdluli and his co-accused.

71. In this case the right to dignity of the complainants, victims and family

members, protected by of section 10 of the Constitution, and their right

to be heard, protected by section 33 of the Constitution, have been

effectively ignored by the respondents when they took the impugned

decisions. And yet, General Mdluli was heard and afforded an

opportunity to make representations.

72. Such unequal treatment of the affected persons violate the rights of the

complainants, victims and family members to equal protection and

benefit of the law, in a manner which is inconsistent with section 9(1) of

the Constitution.

73. The affected complainants, victims and family members are persons

from historically disadvantaged backgrounds. They do not have the



42

knowledge, means and resources to assert their constitutional rights and

ventilate the breaches of the Constitution and the rule of law arising

from the decisions that are sought to be reviewed, as well as the conduct

of the respondents in taking those decisions.

74. Furthermore, the affected complainants, victims and family members do

not have the financial means and the legal expertise to institute and

prosecute review or other legal proceedings to bring to the attention of

the Court the unconstitutional and unlawful decisions and conduct of the

first to third respondents, and to seek appropriate remedy.

75. Having regard to the above circumstances, the applicant is entitled to act

on behalf of the affected complainants, victims and family members to

bring the present review application. It has the necessary resources and

expertise to do so.

Acting in the public interest

76. One of the criminal charges brought against General Mdluli relates to

corruption, involving the abuse of financial resources of the State,

namely the Secret Service Account, for private gain. This criminal charge

is pre-eminently serious in itself. Its gravity cannot be called into



43

question where that charge of corruption is directed against one of the

most senior members of SAPS who is part and parcel of law enforcement.

77. Where a criminal charge of corruption against a senior law enforcement

agent, in this case General Mdluli, and disciplinary charges arising

therefrom, are withdrawn in a manner that violates the Constitution and

the rule of law, there is a public interest to ensure that such

unconstitutional and unlawful decisions are set aside. The public

interest is fortified by the additional consideration that General Mdluli

has been reinstated in his office as the head of crime intelligence of SAPS,

notwithstanding the unconstitutional and unlawful decisions.

78. The government of the Republic has set its face against the scourge of

corruption. It is also a state party to an international convention which

imposes obligations on it to take effective measures to fight corruption

in the public service. It follows, therefore, that allegations of corruption

levelled against General Mdluli, a senior law enforcement agent, must

not only be investigated and be prosecuted, but also that he should not

be allowed to resume office and remain in charge of the very unit of

crime intelligence which controls the Secret Service Account whose

funds form the subject-matter of the charge of corruption.



44

79. That General Mdluli’s position allows him to access and influence the

investigation of the offences in which he is implicated is also relevant to

how allegations of internal corruption are dealt with by SAPS.

80. In all of the public statements they have made, neither General Mdluli

nor the first to third respondents have claimed that there is any

prejudice that General Mdluli or the respondents concerned will or

might suffer, in the event that General Mdluli is not reinstated as the

head of crime intelligence in the absence of proper investigation and

determination of the allegations against him.

81. In any event, any prejudice there may be, the existence of which I deny,

cannot outweigh the public interest in ensuring that criminal and

disciplinary charges against General Mdluli are prosecuted diligently

and without delay, and that he should not be reinstated as the head of

crime intelligence of SAPS, until the finalisation of those charges in

appropriate forums.

82. I have been advised and respectfully submit that the Constitution and

the judgments of the Courts engender a culture of transparency and

justification by organs of State entrusted with the exercise of public

power. The first to third respondents are required to comply with and

promote this culture of justification, and yet they have failed to do so by



45

their silence and failure to publicly provide justification for their

decisions, in the face of widespread public condemnation of those

decisions.

83. Moreover, the fourth respondent has called upon the first and third

respondents to reinstate the criminal charges against General Mdluli and

his co-accused. They have failed to give effect to the recommendations of

the fourth respondent, and have done so without providing any reasons

for their failure.

84. From the media reports it is apparent that the first respondent or other

members of the NPA acting on his behalf had requested a legal opinion

from senior counsel on whether the murder and related charges against

General Mdluli should be withdrawn, and that the legal opinion obtained

indicated that there was no justifiable basis on which to withdraw those

charges. That too, adds to the lack of justification, accountability and

openness on the part of the first respondent and/or her office.

85. I therefore submit that the applicant is entitled to act in the public

interest to bring the present review.

86. In the light of the fact that the first to third respondents have withdrawn

the criminal and disciplinary charges against General Mdluli, without



46

any justification and explanation for their conduct, particularly the

decision to reinstate him in office in the face of these charges remaining

undetermined, the applicant is compelled to approach this court to

review and set aside the impugned decisions and to direct the

respondents concerned to fulfil their constitutional functions and duties

in accordance with the mandatory orders described in the notice of

motion.

F. Background facts

87. I deal next with background facts which set out the context and scene of

the present application. For convenience, I deal with the factual

background under different headings which identify the relevant

subject-matter.

The employment of General Mdluli in SAPS

88. General Mdluli joined SAPS on 27 August 1979. After completion of basic

training he was initially stationed at Evander police station, and

thereafter transferred to Vosloorus SAPS Detective Branch on

31 January 1981.



47

89. In December 1992 General Mdluli was promoted to the rank of

Lieutenant. He was thereafter appointed Branch Commander of the

Vosloorus Detective Branch. In April 1995 General Mdluli was promoted

to the rank of Captain. He was further promoted to the rank of Colonel in

March 1996. On 1 July 1999 General Mdluli became a senior

superintendent.

90. I pause to note that General Mdluli was, the time of the commission of

the murder and related offences, Branch Commander of the Detective

Branch of the very police station in the jurisdiction of which these

offences occurred.

91. He was transferred to the Southern Cape on 1 August 2000, and

promoted to director. On 1 August 2003 he was promoted to the rank of

Deputy Provincial Commissioner in the North West Province. He was

then transferred to Gauteng Province on or about 4 November 2005,

when he became the Deputy Provincial Commissioner. On 1 July 2009

General Mdluli became the National Divisional Commissioner: Crime

Intelligence in SAPS. He is thus the head of the Crime Intelligence

division of SAPS as contemplated in the SAPS Act, and the head of the

intelligence division of the SAPS as contemplated in the National

Strategic Intelligence Act, 39 of 1994 (“the NSIA”). The position is

colloquially referred to in the media as head of Crime Intelligence.



48

92. There have been undenied media reports that, since his reinstatement as

head of Crime Intelligence in SAPS after the criminal and disciplinary

charges against him were withdrawn, General Mdluli’s responsibilities

in SAPS were expanded. In addition to his responsibilities as the head of

Crime Intelligence, he now controls the unit which provides VIP

protection to members of the National Executive of the Republic,

including Ministers and Deputy Ministers, as well as members of the

Provincial Executives, including the Premier and the MECs of various

Provinces. As a consequence he is apprised of the movements of all such

persons. He also exercises complete control over all surveillance that

any division of SAPS wishes to carry out in the investigation of any

matter.

93. Whilst this affidavit was being prepared, the sixth respondent

announced that General Mdluli was being “shifted” out of Crime

Intelligence. It had not yet been determined where he was being shifted

to. However, General Mdluli remains a senior officer in SAPS, with all

that that entails, despite having become one without a portfolio.

94. I have drawn attention to the above brief background, without

diminishing the career development of General Mdluli in SAPS, in order

to show that he occupies one of the most senior positions of leadership

in SAPS. The person who holds that position must enjoy public faith,



49

trust and confidence concerning his ability to properly fulfil the

responsibilities that are required by that office.

95. He must similarly enjoy the respect and confidence of his colleagues and

of junior members of SAPS, for purposes of morale.

96. I have also drawn attention to the above brief background in order to

indicate that whenever there are allegations of corruption and improper

behaviour against the holder of a position of leadership in SAPS such as

the one General Mdluli occupies, there is a compelling public interest to

ensure that those allegations are properly investigated, and if there is

the necessary evidence to support them, then criminal and disciplinary

charges flowing therefrom must be prosecuted diligently. It is not in the

interest of General Mdluli or the public that the charges brought against

him be swept aside without being ventilated and determined in open

court.

Criminal charges against General Mdluli

97. There are two sets of criminal charges that have been brought against

General Mdluli, those relating to murder, and related offences, and those

relating to fraud and corruption, and related offences.



50

98. General Mdluli was arrested on 31 March 2011 on a charge of murder, it

being alleged that he was party to the unlawful and intentional killing of

Mr Tefo Abel Ramogibe (“the deceased”), who, at the time, was married

to Ms Consolation Tshidi Buthelezi, alleged to have had a love

relationship with General Mdluli.

99. Upon his arrest, a docket under case number CAS 340/02/1999 for a

charge of murder was opened against General Mdluli and his co-accused.

The affidavit prepared by Colonel Roelofse annexed hereto and marked

“FA3” describes in detail the investigation which was conducted by him

concerning the murder charge.

100. General Mdluli was also charged with intimidation, kidnapping, assault

with intent to commit grievous bodily harm and defeating the ends of

justice. I refer to annexure “FA3” hereto which details the complainants

in respect of each of these charges and the extent of investigation

relating to them, conducted by Colonel Roelofse.

101. On 20 September 2011 General Mdluli was arrested and charged with

fraud, theft and corruption, as well as money laundering. The charges

arise from the unlawful utilization of the funds held in the Secret Service

Account for the private benefit of General Mdluli and his spouse,

Ms Theresa Lyons. I refer to the affidavit made by Lieutenant-



51

Colonel Viljoen in support of the application for the warrant of arrest of

General Mdluli and his co-accused for these charges, annexed hereto and

marked “FA4”.

102. A docket under case number CAS 155/07/2011 was opened in respect

of these charges. General Mdluli was then brought before the Specialized

Commercial Crimes Court in Pretoria, and was granted bail. The case

was postponed to 14 December 2011.

103. I refer again to the report from Colonel Roelofse to the Commander of

the Anti-Corruption Task Team, annexure “FA1” referred to above,

which describes the nature and extent of the charges of fraud,

corruption and money laundering, and how those charges were

ultimately withdrawn, upon the instruction of the third respondent.

104. Advocate C Smith was appointed to lead the prosecution of General

Mdluli in respect of the charges brought against him for fraud and

corruption. He was supervised by Advocate G Breytenbach. They were

instructed by the third respondent to withdraw the charges against

General Mdluli. They advised the third respondent against the

instruction to withdraw the charges. As appears from paragraph 66 of

annexure “FA1” hereto, the charges were eventually withdrawn in the



52

Specialized Commercial Crimes Court in Pretoria on or about

14 December 2011, as a result of the instruction of the third respondent.

105. It is important to direct the attention of the court to the recent article

which appeared on page 4 of the Sunday Times, 6 May 2012, which

indicates that Advocate Breytenbach addressed a 200-page

memorandum to the first respondent requesting her to reconsider the

decision to withdraw the charges against General Mdluli. The first

respondent has not denied the correctness or otherwise of that article. A

copy of the relevant article is annexed, marked “FA5”.

106. I have drawn attention to the above facts in order to show that the

investigation of the charges brought against General Mdluli and his

prosecution on those charges is a product of fearless and commendable

hard work by law enforcement agents from both SAPS and the NPA.

They are not solely a product of political conspiracy be other senior

members of SAPS against General Mdluli, as he has asserted in order to

deflect a logical prosecution of the charges to finality. A letter from

General Mdluli to the second respondent, amongst others, making such

assertions, is annexure “FA6” hereto.



53

The withdrawal of the criminal charges

107. The circumstances relating to the withdrawal of criminal charges against

General Mdluli are shrouded by secrecy, primarily because neither the

first nor third respondents took it upon themselves to explain to the

public those circumstances and the reasons for the withdrawal of the

charges. This is surprising, and at odds with the prosecution policy

adopted by the office of the National Director of Public Prosecutions

which requires that the first and third respondents should not only act

transparently but also give reasons for their decisions.

108. A copy of the relevant prosecution policy is annexed, marked “FA7”. I

draw attention to Part 6 of the prosecution policy which makes it clear

that the conduct of a member of the NPA who considers a withdrawal of

charges against an accused must be transparent, and his decision to

withdraw a charge or charges against an accused must be accompanied

by reasons.

109. Neither the first nor third respondent acted transparently in respect of

the decisions to withdraw the charges against General Mdluli. They have

not provided reasons for those decisions. They have acted contrary to

the legal yardstick that they have set for themselves, in addition to

acting inconsistent with the Constitution and the rule of law.



54

110. I hasten to add that it is not a matter of practical difficulty for the first

and third respondents to have acted transparently and to provide

reasons. There is precedent for a transparent process and the giving of

justifiable reasons in respect of a decision to withdraw charges. It will be

recalled that when Advocate Mokotedi Mpshe SC decided to withdraw

criminal charges against President J G Zuma he called a press conference

and gave a full account of the circumstances, considerations and reasons

which, he said, had led him to make that decision.

111. The circumstances of the present case are not dissimilar, and are, in fact,

more compelling, in as much as they involved the institution and

withdrawal of serious criminal charges against a senior ranking public

official, on a matter which has generated widespread and continuing

public controversy.

112. From the contents of annexure “FA1” hereto, it is clear that the third

respondent took the decision to withdraw the criminal charges of

corruption and fraud against General Mdluli by taking into account

representations made to him on behalf of General Mdluli.

113. He did not call for and has not received representations from interested

persons or groups. Persons who have an interest in the prosecution of

these offences, include the Anti-Corruption Task Team, the second



55

respondent, the head of the Directorate of Priority Crime Investigation

(the Hawks), and the fourth respondent. It is not clear why

representations from these individuals were not called for.

114. It is similarly clear that representations from the complainants, victims

and family members of the deceased in respect of the charges of murder,

intimidation, kidnapping, assault with intent to do grievous bodily harm

were not sought when the third impugned decision was taken.

115. From the media reports, particularly the article which appears in City

Press, 25 March 2012, a copy whereof is annexed, marked “FA8”, the

fourth respondent appears to have investigated circumstances which led

to the withdrawal of the fraud and corruption charges against General

Mdluli and recommended that those charges should be re-enrolled.

116. To date, the request of the fourth respondent has not been positively

received and acted upon by the first and/or third respondents. No

reasons have been furnished for their refusal to accept the

recommendation of the fourth respondent for the re-enrolment of the

criminal charges.

117. I have already indicated that a legal opinion from senior counsel was

requested and obtained at the instance of the office of the first



56

respondent, concerning the withdrawal of charges. Again, it is not clear

and reasons have not been furnished why the first respondent has not

acted in accordance with the legal opinion he obtained, not to withdraw

but to proceed with the prosecution of the charges against General

Mdluli.

118. All of the above factors show that the withdrawal of the charges against

General Mdluli is not only unconstitutional but also reviewable. I deal

with the grounds of review in section H of this affidavit.

The institution and withdrawal of disciplinary proceedings against

General Mdluli

119. I am not aware precisely when the disciplinary proceedings were

instituted against General Mdluli. It is clear, however, from the contents

of annexures “FA1” and “FA3” hereto that those charges were instituted

by the second respondent against General Mdluli. I invite the second

respondent to indicate when those charges were instituted, what those

charges are and the status thereof by the time they were withdrawn.

120. The second respondent is reported to have stated that he took the

decision to withdraw charges as a result of instructions from authorities

“beyond” him. I invite the second respondent to explain to the Court who



57

instructed him to take the decision to withdrawn the disciplinary

charges against General Mdluli.

121. I also add that annexure “FA8” hereto indicates that the fourth

respondent recommended that the second respondent reinstate

disciplinary charges against General Mdluli. Thus far, the second

respondent has not positively acted upon the request. He has also not

given reasons for his failure or refusal to act in accordance with the

recommendation of the fourth respondent.

The reinstatement of General Mdluli

122. After the withdrawal of the criminal charges and disciplinary charges

against him, General Mdluli resumed office as the head of Crime

Intelligence of SAPS, with effect from 31 March 2012. I refer to a copy of

the article which appears on page 5 of the Sunday Times, 6 May 2012

which indicates that General Mdluli confirmed that he has now resumed

his official duties as the head of Crime Intelligence in SAPS. A copy of

that article is annexed hereto and marked “FA9”.

123. As I have already indicated General Mdluli’s official responsibilities were

extended to include control of the SAPS unit which provides VIP



58

protection services to members of the National and Provincial Executive

Authority of the Republic.

124. There has been a recent announcement in Parliament by the sixth

respondent, stating that General Mdluli will be “shifted” from his post,

but it is not clear where he would be shifted to. General Mdluli remains a

senior official in SAPS, albeit without portfolio.

G. The constitutional and statutory powers, functions and duties of the

affected public functionaries

125. The applicant seeks to review the impugned decisions in the context of

the following constitutional and statutory matrix relating to the powers,

functions and duties of the first to fifth respondents. I describe this

constitutional and statutory matrix in order to show how the first to

third respondents failed to properly fulfil their functions and duties. The

powers, functions and duties of the fifth respondent are relevant

because they highlight the importance of the impugned decisions to the

constitutional project and the rule of law.



59

The National Director of Public Prosecutions (the First Respondent)

and the National Prosecuting Authority

126. Section 179(1) of the Constitution establishes the National Prosecuting

Authority (“the NPA”) which is headed by the National Director of Public

Prosecutions (“the NDPP”) who is appointed by the President. This is the

office of the first respondent, which is currently occupied by an “acting”

appointment.

127. Section 179(2) of the Constitution makes it clear that the NPA is the only

organ of State which is authorized to institute and prosecute criminal

offences. It does so not in its own interest, but in the public interest,

acting on behalf of the State. I emphasize that the State in this context

implies the representative of the people of the Republic.

128. In terms of section 179(4) of the Constitution, the NDPP and other

members of the NPA are required to fulfil their functions without fear,

favour or prejudice. That provision of the Constitution requires that

national legislation must be implemented in order to give effect to this

constitutional requirement. I shall deal with the provisions of the NPA

Act, which is the national legislation contemplated in section 179(4) of

the Constitution.



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129. Section 179(5)(d) of the Constitution empowers the NDPP to review a

decision to prosecute or not to prosecute a criminal charge or charges

against a person, after considering representations within a time period

specified by the NDPP from an accused person, the complainant or any

person or party whom the NDPP considers to be relevant, in connection

with the making of the representations.

130. I draw attention to the provisions of section 179(5)(d) of the

Constitution because the third respondent made the decision to

withdraw the fraud and corruption charges after he obtained

representations made by or on behalf of General Mdluli, on

17 November 2011. Similarly, the murder charges were withdrawn

without compliance with section 179(5)(d).

131. I also draw attention to the provisions of section 179(5)(d) of the

Constitution because it is relevant to the prosecution policy referred to

earlier in this affidavit, annexure “FA7”, which also contains guidelines

that must be followed whenever the first respondent or any other

person authorized by him is called upon to consider a request for

withdrawal of criminal charges against that person.



61

132. The first respondent’s powers, functions and duties as set out in the

Constitution are reflected and expanded upon in sections 20 - 22 of the

NPA Act.

133. The powers, functions and duties of the first respondent are integral to

the democratic and open society envisaged in the Preamble to the

Constitution, and to the functioning of the State envisaged by the

Constitution. It has been noted by the Supreme Court of Appeal in the

Democratic Alliance judgment mentioned earlier in this affidavit that the

powers to investigate and prosecute are central to the preservation of

the rule of law. The manner in which these powers are exercised is,

therefore, also central to the preservation of the rule of law.

The National Commissioner: South African Police Service (the Second

Respondent)

134. In terms of section 205(3) of the Constitution, the objects of SAPS are “to

prevent, combat and investigate crime, to maintain public order, to

protect and secure inhabitants of the Republic and their property, and to

uphold and enforce the law.”

135. The second respondent is appointed in terms of section 207 of the

Constitution to “control and manage the police service” in accordance



62

with the national policing policy and the directions of the responsible

Minister.

136. The SAPS Act provides in section 11 that the second respondent has the

powers, functions and duties set out in section 218(1) of the Interim

Constitution, which remains in force by virtue of section 24 of Schedule

6 to the Constitution.

137. Thus, in addition to the responsibilities outlined earlier in this affidavit,

the second respondent is responsible for, inter alia,

137.1. maintaining “an impartial, accountable, transparent and

efficient police service”;

137.2. preserving the Republic’s internal security;

137.3. investigating and preventing organized crime and crime

requires “national investigation and prevention or specialized

skills”, and

137.4. keeping and providing crime intelligence data.



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138. Once again, the powers, functions and duties of the second respondent,

like those of the first respondent, are integral to the open and

democratic society sought to be established by the Constitution, and to

the rule of law. The manner in which these functions are carried out

would, similarly, be central to the rule of law.

The Head: Specialised Commercial Crime Unit (the Third

Respondent)

139. The third respondent is the head of the Specialised Commercial Crime

Unit, a “business unit” within the NPA.

140. As a member of the NPA, the third respondent has the obligation to carry

out his responsibilities without fear, favour or prejudice, and to do so in

accordance with the rule of law.

The Inspector General of Intelligence (the Fourth Respondent)

141. The fourth respondent’s functions, in terms of section 7(7) of the

Intelligence Services Control Act, 40 of 1994 (also known as the

Intelligence Services Oversight Act), and in relation to SAPS, are, inter

alia:



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141.1. to monitor compliance with the Constitution, law and applicable

policies;

141.2. to review intelligence and counter-intelligence services;

141.3. to receive and investigate complains about

141.3.1. maladministration;

141.3.2. abuse of power;

141.3.3. non-compliance with the Constitution, law and

applicable policies;

141.3.4. offences in terms of the Prevention and Combating of

Corrupt Activities Act, 2004, and

141.3.5. improper enrichment of any person as a result of an

act or omission of a member of SAPS, and



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141.4. to perform any functions designated to the office by the

President or relevant Minister.

142. The fourth respondent therefore performs a key function in ensuring

that SAPS and its members exercise their powers, perform their

functions and carry out their duties in accordance with the Constitution

and the rule of law.

143. The fourth respondent does not have the power to enforce her decisions

or recommendations.

The Divisional Commissioner: Crime Intelligence (the Fifth

Respondent)

144. General Mdluli is the head of the Crime Intelligence Division of SAPS. The

crime intelligence functions of SAPS are dealt with in the NSIA.

145. Crime intelligence is defined in the NSIA as “ intelligence used in the

prevention of crime or to conduct criminal investigations and to prepare

evidence for the purpose of law enforcement and the prosecution of

offenders”.



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146. The Crime Intelligence Division of SAPS has the following functions, in

terms of section 2(3) of the NSIA:

“(a) to gather, correlate, evaluate, co-ordinate and use crime

intelligence in support of the objects of the South African

Police Service as contemplated in section 205 (3) of the

Constitution;

(b) to institute counter-intelligence measures within the

South African Police Service; and

(c) to supply crime intelligence relating to national strategic

intelligence to Nicoc.”

147. The Division also has the duty to support the Directorate for Priority

Crime Investigation.

148. Functions of the head of Crime Intelligence, in terms of the SAPS Act

read with the NSIA, include:

148.1. sitting as a member of the National Intelligence Co-ordinating

Committee (“Nicoc”), which co-ordinates all intelligence

gathered by National Intelligence Structures and interprets it for

use of the State and Cabinet.



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148.2. issuing security clearances for persons to be appointed to the

Directorate for Priority Crime Investigation.

149. General Mdluli’s responsibilities therefore extended, as head of crime

intelligence, to all intelligence gathered by all intelligence services, in

addition to crime intelligence.

150. In the position he occupied, General Mdluli had access to all intelligence

and intelligence gathering processes. In addition, he was able to decide

what intelligence is used and what is discarded, and to focus the manner

and direction of intelligence gathering.

151. As a part of SAPS, General Mdluli has a duty to exercise his powers, carry

out his functions and fulfil his duties in accordance with the

Constitutional objects set out at section 205(3) of the Constitution.

H. Grounds of review

152. In this section of the affidavit I describe the grounds on which the

impugned decisions are susceptible to review. I deal with the grounds of

review separately in respect of each of the impugned decisions.



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The first impugned decision

153. As I have already indicated, the first impugned decision, in terms

whereof the criminal charges of fraud, corruption and money laundering

instituted against General Mdluli were withdrawn on the instruction of

the third respondent, was taken on 6 December 2011.

154. The first impugned decision is reviewable on the following grounds:

154.1. It was made by the third respondent when, in law, he did not

have the power to make that decision. In terms of

section 179(5)(d) of the Constitution, the power to review,

reconsider or withdraw criminal charges against an accused

person are vested in the first respondent and not the third

respondent.

154.2. The provisions of section 22(2)(c) of the NPA Act are to the

same effect. They vest the power to review, reconsider or

withdraw criminal charges against an accused person in the first

respondent, but merely require her to, amongst others, consult

with the relevant Director of Public Prosecutions.



69

154.3. The legal representatives of FUL have also considered the

provisions of sections 23 and 24 of the NPA Act which deal with

the powers, functions and duties vested upon a Deputy Director

and a Director in the NPA. None of the provisions of those

sections of the NPA Act expressly confer the power to review,

reconsider or withdraw charges against an accused person to a

Deputy Director or Director of the NPA. Moreover, those

provisions make it clear that they are subject to the overriding

provisions of section 179 of the Constitution. I therefore submit

that the third respondent cannot rely on the provisions of

sections 23 or 24 of the NPA Act in order to justify the power he

unlawfully exercised.

154.4. I therefore submit that the third respondent acted

inconsistently with section 179(5)(d) of the Constitution and

section 22(2)(c) of the NPA Act, when he usurped and exercised

powers he did not have. He therefore acted unconstitutionally

and in violation of the rule of law and the principle of legality.

155. The second ground of review is that the first impugned decision was

made in a manner which is inconsistent with the requirements of

section 179(5)(d)(iii) of the Constitution, as well as section 22(2)(c) of

the NPA Act.



70

156. It will be recalled that one of the requirements for the lawful exercise of

the power to withdraw a charge or charges against an accused person is

that the first respondent must consider representations from, amongst

others, a complainant and any other person the first respondent

considers relevant.

157. In this case, the third respondent failed to comply with that

constitutional requirement. He did not call for or consider

representations from any person that he considered relevant. There

were relevant persons from whom the third respondent should have

considered representations, before he issued instructions to withdraw

the charges of fraud, corruption and money laundering. These persons

include:

157.1. The investigating officers who investigated the offences,

gathered the necessary evidence and compiled a report on the

weight of the evidence against General Mdluli. I refer, in this

regard, to Colonel Roelofse and Lieutenant-Colonel Viljoen.

157.2. The head of the Hawks, General A Dramat, whose unit is

primarily responsible for investigation of corruption in the

public service, and was tasked with the investigation into

General Mdluli’s conduct.



71

157.3. The second respondent, who had taken the decision to suspend

General Mdluli from office and instituted disciplinary charges of

misconduct, as a result of the criminal charges of fraud,

corruption and money laundering.

158. All of the above persons were known to the third respondent and their

interests in the decision he made was known to him. He could not

lawfully make the decision to withdraw charges without regard to those

interests and without regard to considering representations based on

those interests.

159. I therefore submit that the first impugned decision is reviewable, as it is

inconsistent with the relevant provisions of section 179(5)(d)(iii) of the

Constitution, and also section 22(2)(c) of the NPA Act.

160. The third ground of review is that the first impugned decision is

irrational as it was made against the advice given to the third

respondent by Advocate Breytenbach who was responsible for the

prosecution of the charges of fraud, corruption and money laundering.

It was also made against the opinion of senior counsel that the charges

should not be withdrawn.



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161. The irrationality becomes more profound in the light of the

recommendation by the fourth respondent that the charges be

reinstated. This recommendation of reinstatement of the charges is

justifiable in the light of the weight of the evidence gathered by the

investigating officers to support the charges.

162. I therefore submit that the first impugned decision is subject to

rationality review and is inconsistent with the rule of law and the


163. In addition to the above grounds of review, the first impugned decision

is open to review in terms of the following provisions of PAJA:

163.1. section 6(2)(a)(i), on the ground that it was made by the

administrator when it was not authorized by the empowering

provision to make that decision, namely, section 179(5)(d) of

the Constitution and section 22(2)(c) of the NPA Act;

163.2. section 6(2)(b), on the ground that it was made without

complying with the material conditions prescribed by the

empowering provision, namely, section 179(5)(d)(iii) of the

Constitution and section 22(2)(c) of the NPA Act;



73

163.3. section 6(2)(e)(vi), on the ground that it was taken arbitrarily

and capriciously, as the third respondent only considered

representations from General Mdluli and did not consider it

necessary to call for and consider representations from other

relevant parties who were known to him and whose interests

were directly affected by the first impugned decision;

163.4. section 6(2)(f)(ii)(cc), on the ground that it was not rationally

connected to the information that was placed before the third

respondent. That information includes the advice by Advocate

Breytenbach;

163.5. section 6(2)(h), on the ground that it was so unreasonable that

no reasonable decision-maker could have made it. Having

regard to the weight of the evidence gathered in support of the

charges, the advice and opinion at the disposal of the third

respondent, no reasonable decision-maker would have arrived

at a decision to withdraw those charges.

164. I am aware that, on a previous occasion, the first respondent contended

that a decision to withdraw charges against an accused person is not

open to review because it does constitute an administrative action.

Should the first and/or third respondent repeat that contention in these



74

proceedings, I submit that the contention is wrong. I have been advised

that the decision to withdraw charges constitutes an administrative

action that is open to review in terms of PAJA.

The second impugned decision

165. The second impugned decision relates to the withdrawal of disciplinary

charges against General Mdluli, on or about 29 February 2012, that was

made by the second respondent or other members of SAPS acting on his

authority.

166. I submit that the second impugned decision is open to legality review on

the following grounds:

166.1. First, it was made by the second respondent, apparently acting

upon the dictation or instruction of authorities “beyond” him.

He therefore acted inconsistently with the provisions of

section 207(1) of the Constitution, which impose the

constitutional obligation upon him, and no other authority

“beyond” him, to control and manage SAPS. His obligation in

that regard excludes a dictation or instruction from authorities

“beyond” him.



75

166.2. Secondly, the disciplinary charges were instituted against

General Mdluli in terms of the Regulations made under the SAPS

Act. The second respondent had the obligation to give effect to

those Regulations, as he had the constitutional object of

upholding and enforcing the law, in terms of section 205(3) of

the Constitution.

166.3. By acting upon the dictation or instruction from authorities

“beyond” him, the second respondent acted inconsistently with

the provisions of section 205(3) of the Constitution.

166.4. Thirdly, the second respondent acted inconsistently with the

preserved provisions of section 218(1) of the Interim

Constitution read with section 11 of SAPS Act, in that he did not

act in a manner which was impartial, accountable, transparent

and likely to maintain the efficiency of SAPS when he withdrew

the disciplinary charges against General Mdluli.

166.5. Moreover, the withdrawal of the disciplinary charges will have

the effect of undermining, within SAPS, the values of

impartiality, accountability, transparency and efficiency, which

must be maintained in accordance with section 11 of the SAPS

Act read with section 218(1) of the Interim Constitution.



76

167. I therefore submit that the second impugned decision is open to a

legality review and violates the rule of law and the principle of legality.

The third impugned decision

168. The third impugned decision relates to the withdrawal of the charges of

murder, kidnapping, intimidation and assault with the intent to do

grievous bodily harm, and defeating the ends of justice, which decision

was made on or about 2 February 2012 by the first respondent or

officials acting on her behalf.

169. The third impugned decision is open to legality review on the following

grounds:

169.1. It was made in a manner inconsistent with the express

requirement of section 179(5) of the Constitution, in that no

representations from the complainants, victims and family

members affected by the criminal charges were called for and

considered before the third impugned decision was made.

169.2. Secondly, it was made in violation of section 10 of the

Constitution which guarantees a right of dignity to the



77

complainants, victims and family members affected by the

second impugned decision.

169.3. The affected complainants, victims and family members are

entitled to justice, and to see that justice is being done by the

prosecution of General Mdluli for the charges brought against

him. They have been deprived of the right to receive justice and

the opportunity to realize a sense of justice as a result of the

withdrawal of the charges.

169.4. Thirdly, it was made in violation of section 33 of the

Constitution which confers upon the affected complainants,

victims and family members a right to procedurally fair

administrative action. The third impugned decision was made

without calling for and receiving representations from the

affected complainants, victims and family members, and thus

deprived them of the right to administrative action which is

procedurally fair.

170. In addition, the third impugned decision is open to rationality review in

that the criminal charges were withdrawn when there was compelling

evidence to support them. I have already referred to the affidavits made

by the investigating officers, particularly Colonel Roelofse, which



78

indicate the extent of the investigations he conducted and the evidence

obtained to support those charges. That evidence justifies the

prosecution rather than the withdrawal of the charges.

171. Furthermore, the third impugned decision is subject to review in terms

of the following provisions of PAJA:

171.1. section 6(2)(b), on the ground that the first respondent failed to

comply with the material requirement of the empowering

provision, namely, section 179(5)(d)(ii) and (iii) of the

Constitution;

171.2. section 6(2)(f)(ii)(cc), on the ground that it was not rationally

connected to the information placed before the first respondent;

171.3. section 6(2)(h), on the ground that it is so unreasonable that no

reasonable decision-maker would make. In the light of the

evidence that was gathered in support of the charges, the

decision to withdraw those charges was so unreasonable that

no reasonable decision-maker would make it, and



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171.4. section 6(2)(i), on the ground that it is unconstitutional, as it is

inconsistent with sections 10, 33 and 179 of the Constitution.

The fourth impugned decision

172. The fourth impugned decision relates to the reinstatement of General

Mdluli on or about 31 March 2012, after the withdrawal of criminal

charges against him. As a result of the decision to reinstate him, General

Mdluli resumed his functions and duties as the head of Crime

Intelligence at SAPS.

173. I submit that the fourth impugned decision is subject to review for its

legality on the following grounds:

173.1. It violates section 218(1) of the Interim Constitution in that it

imperils the values of impartiality, accountability, transparency

and efficiency within SAPS. By reinstating General Mdluli in the

face of criminal charges against him, SAPS is sending a public

message that it tolerates, or is unable to deal with, allegations of

corruption and other criminal conduct of a serious nature

within its ranks. That is at odds with the prescribed values.



80

173.2. It also violates section 205(2) of the Constitution, in that SAPS

will not be able to discharge its responsibilities effectively, when

it has in its midst a head of Crime Intelligence (or a senior

officer with an as yet unknown portfolio) who faces allegations

of corruption and other serious criminal offences which have

not been properly ventilated and concluded in a court of law.

174. The fourth impugned decision is also subject to rationality review in that

there was no legitimate governmental purpose to justify the decision to

reinstate General Mdluli. As I have already indicated, none of the

respondents have claimed that General Mdluli or SAPS will be

prejudiced if he is not reinstated until the finalization of the charges

against him. In any event, any prejudice he or the respondent may

demonstrate, would not outweigh the need to maintain the values which

SAPS is required to maintain, and the obligation to ensure that it

operates effectively and efficiently.

175. I therefore request the honourable Court to review the impugned

decisions on the grounds set out above.



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I. Mandatory orders

176. I have already shown that the impugned decisions reflect clear and

widespread violations of the relevant provisions of the Constitution.

Should they be reviewed and set aside, then, the first to third

respondents will be obliged to comply with the constitutional

obligations I have already identified.

177. I stress that in terms of section 237 of the Constitution, all organs of

State, including the first to third respondents, are obliged to fulfil duties

imposed upon them under the Constitution diligently and without delay.

In the light of this constitutional imperative, there is a well-established

basis for the grant of the mandatory orders described in the notice of

motion.

J. Rule 16A notice

178. The issues raised in this application are of fundamental constitutional

importance. The applicant therefore has been advised to issue a notice in

accordance with the requirements of Rule 16A, in order to inform

interested parties of the constitutional issues that are raised in this

application. A copy of that notice accompanies the notice of motion.



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K. Conclusion

179. I respectfully submit that the present matter requires to be heard on an

urgent basis as regards Part A of the Notice of Motion, and on an

expedited basis as regards Part B. As indicated, General Mdluli has not

been suspended from office, but continues to exercise the authority of

his high rank. It is not in the public interest, nor in any bona fide interest

of General Mdluli, or the other respondents, for the very serious issues

raised by this application to be heard in the ordinary course. Inherent

urgency attaches to the issues. As regards Part B, although the grant of

Part A will ensure that does not continue to exercise any daily authority

as a senior police officer, it is clearly vital that a final determination

regarding the four impugned decisions be made as soon as possible, in

the public interest and in the interests of the respondents themselves. I

accordingly understand that the Deputy Judge President will be asked to

issue directions regarding the conduct of Part B of the matter, and

particularly as regards an expedited date of hearing for the final relief.



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180. In the light of the facts and submissions set out above, I ask the court to

grant an order as set out in the notice of motion.

_________________________________

DEPONENT

I CERTIFY that the deponent has acknowledged that she knows and understands

the contents of this affidavit has no objection to taking the prescribed oath. Thus

done, signed and sworn to before me, at on this the day of MAY

2012, in terms of the Regulations contained in Government Notice No. R.1258

dated 21 July 1972 (as amended) and Government Notice No. R.1648 dated

19 August 1977 (as amended), which have been complied with.

________________________________________

COMMISSIONER OF OATHS

Documents

FUL v NDPP (Gen Mdluli) - Founding Affidavit (Dr Ramphele)