Former police crime intelligence boss Richard Mdluli will still have his day in court, if Judge John Murphy’s new judgements are carried out.
In the Pretoria High Court on Monday, Murphy’s written judgement ruled that various criminal charges against Mdluli, which had been withdrawn, must be reinstated by the national director of public prosecutions and that national police commissioner Riah Phiyega must proceed with the disciplinary action that had also been aborted.
Murphy noted that the withdrawal of fraud and corruption charges against Mdluli “was illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it.” It must therefore be set aside, he concluded.
He criticised the decision to withdraw the murder charges against Mdluli in the 1999 death of Oupa Ramogibe, in order to carry out an inquest into Ramogibe’s death.
“An inquest is an investigatory process held in terms of the Inquests Act which is directed primarily at establishing a cause of death where the person is suspected to have died of other than natural causes,” explained Murphy. “In relation to the killing of the deceased, given that he was shot three times by unknown assailants, there is no doubt that an offence was involved,” he added later.
An inquest can’t take the place of criminal proceedings, said Murphy, because it can only determine cause of death and not who carried out the deed. In any case, the inquest could only apply to the murder charge and not to the other 17 charges brought against Mdluli.
Murphy said that it was hard to understand why Andrew Chauke, the director of public prosecutions for south Gauteng, had not proceeded with the charges of attempted murder, assault, kidnapping, and more, after the inquest. “The decision to withdraw the murder and related charges was taken in the face of compelling evidence for no proper purpose, is irrational and therefore reviewable on legality and rationality grounds.”
He set aside Chauke’s decision to carry out an inquest, and ordered that the murder and related charges, the charges of fraud and corruption, and the disciplinary proceedings all be re-instated. He further ordered that Mdluli’s re-instatement by then acting commissioner of the South African Police Service (SAPS) Lieutenant General Nhlanhla Mkhwanazi, in March 2012, be set aside.
Taking on the big guns
In June 2012 Corruption Watch, together with Social Justice Coalition, sought to intervene as co-applicants in a case brought by lobby group Freedom Under Law (FUL) against the National Prosecuting Authority (NPA) and five other respondents – including Mdluli. The case challenged the decisions taken to withdraw criminal and disciplinary charges against Mdluli, including the withdrawal of corruption charges.
The two co-applicants later withdrew their application, fearing that it would cause delays in the FUL case. “It is in the interests of justice that the matter be adjudicated as soon as possible,” said Corruption Watch executive director David Lewis at the time.
FUL sought to have four crucial decisions overturned:
- the decision taken by the NPA’s Lawrence Mrwebi on 5 December 2011 to withdraw the corruption and related charges;
- the decision taken on 1 February 2012 by Chauke to withdraw the murder and related charges;
- the decision taken by Mkhwanazi, on 29 February 2012, to withdraw the disciplinary proceedings;
- the decision taken by Mkhwanazi, on 31 March 2012, to reinstate Mdluli as the head of crime intelligence within SAPS.
The organisation also asked the judge to order that all charges against Mdluli be re-instated and carried to their conclusion, without delay.
Career of crime
At the end of March 2011 Mdluli was charged with a number of offences in connection with the death in 1999 of Ramogibe, who had married Tshidi Buthelezi, Mdluli’s former girlfriend and the mother of his child. The 18 charges included intimidation, kidnapping, assault with intent to do grievous bodily harm, murder, attempted murder, and conspiracy to commit murder, as well as defeating the ends of justice.
Bheki Cele, police commissioner at the time, suspended Mdluli in May 2011 and started disciplinary proceedings against him.
In September 2011 Mdluli faced further charges of fraud, theft and money-laundering, as well as nepotism and the misuse of police funds – these charges were provisionally withdrawn by Mrwebi, in December 2011.
The murder charges, too, were provisionally withdrawn in February 2012 pending the outcome of an inquest. Two weeks later the disciplinary proceedings, too, came to a sudden end and the crime boss, who had been suspended from SAPS, was reinstated, but later deployed in a different department. He was suspended again on 27 May, but had the suspension lifted, only to see that decision reversed after an urgent application by SAPS. Since then Mdluli has been suspended on full pay.
On 2 November 2012, magistrate Jurg Viviers ruled in the Boksburg Magistrate’s Court that the theory that Mdluli had murdered Ramogibe was not the only possible explanation, and further, that there was evidence of a plot against him. Viviers cleared Mdluli, and three men accused with him, of any involvement in the murder.
