Mdluli review - a question of powers

FUL, which is seeking a review and setting aside of the decision to withdraw criminal and disciplinary charges Mdluli, claimed Specialised Commercial Crimes Court head Lawrence Mrwebi did not consult properly before withdrawing the charges. According to a report in The Times, the group's advocate, Vincent Maleka SC, said Mrwebi was wrong in withdrawing murder, kidnapping and assault charges against Mdluli. 'Only the National Director of Public Prosecutions has powers to discontinue prosecution,' he said. However, Judge John Murphy said he shuddered 'to think of the consequences' if every decision for review had to go to the directorate. The report notes the charges relate to the 1999 murder of Oupa Ramogibe, who was shot while pointing out the scene of a previous attempt on his life to police. Ramogibe was at the time married to Mdluli's former lover and Mdluli was a senior police officer at Vosloorus police station in Ekurhuleni. Full report in The Times

Laurance Hodes SC, representing the NDPP, argued that reviewing the Mdluli saga should not be up to the court. 'There can be no doubt that a decision to provisionally withdraw, or to finally withdraw a decision (to prosecute) falls within the powers that are ascribed to the NDPP,' he said. 'In the absence of an approach through the NDPP for a review... there cannot be an approach to a court to intervene,' Hodes said, according to a report on the IoL site. Citing several legal experts' commentaries on the Criminal Procedure Act, Hodes said organisations did not have the right to compel the NPA to prosecute. 'Who has the right to compel the NPA to act? It is a fair question, because the Act answers that. It says an interested party has to be an individual, so it does not have to be an organisation? 'Who has the power to withdraw a charge? The answer is anybody in the NPA, and it is not circumscribed,' said Hodes. Full report on the IoL site

The review application follows an urgent interim interdict obtained by FUL last year, which stopped Police Minister Nathi Mthethwa from assigning any function to Mdluli pending the determination of the current case. A Business Day report notes the case comes amid reports that there was a fresh push to re-instate Mdluli, who is believed to have smoothed President Jacob Zuma's ascent to office with the help of the so-called spy tapes. FUL says the case relates to the fitness of Mdluli to hold public office, and also touches on the rule of law, as well as the duties of the NDPP and the National Police Commissioner, along with the demands for accountable and the rational exercise of their powers. The application is opposed by Mthethwa, Mrwebi, NDPP Mxolisi Nxasana and Commissioner Riah Phiyega, the report notes. Full Business Day report (subscription needed)

The inquest finding on Ramokgibe's death did not clear Mdluli of charges of murder, attempted murder, assault, kidnapping and intimidation. A City Press report notes that one of the decisions FUL is attacking is one taken by Johannesburg prosecutions boss Andrew Chauke, who said he had withdrawn Mdluli's prosecution because an inquest into his death was being held. The inquest finding by Magistrate Jurg Viviers last November found that nobody could be held responsible for Ramokgibe's murder, a finding which the NPA has relied upon to substantiate the dropping of charges against Mdluli. But Maleka said the finding presented 'highly relevant and serious challenges for Mr Mdluli'. The report notes this interpretation appeared favourable to Judge John Murphy, the presiding officer, who said: 'If I read the magistrate's finding correctly and (the respondents) will challenge me here ... the finding was to the effect that the inference that Mdluli was implicated in murder was indeed consistent with the facts'. 'There was a prima facie case'. Murphy said Viviers had only found that Mdluli was not responsible because Mdluli's involvement was not the only reasonable inference to be drawn from the facts, notes the report. Full City Press report