Freedom Under Law Challenges Gen Richard Mdluli

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Freedom Under Law (FUL) today (15 May 2012) launched an urgent application to interdict Gen Richard Mdluli from continuing to discharge any function as a police officer pending the judicial review of a series of decisions relating to his recent reinstatement as head of Crime Intelligence of the South African Police Service (“SAPS”).  A similar interdict is sought against the Minister of Safety and Security from assigning any function or duty to Gen Mdluli before the review can be heard.

The urgent application has been set down for hearing on Tuesday 5 June 2012 in the High Court, Pretoria.  An early date will be sought from the Deputy Judge President regarding the hearing of the application for judicial review thereafter.

Dr Mamphela Ramphele is the deponent to FUL’s founding affidavit.  She is a member of FUL’s international advisory board, well known for her life-long commitment as a social activist.  Detained and subjected to banning orders in the 1970s, she went on to become a co-author of the Second Carnegie Report on Poverty in South Africa, Vice-Chancellor of the University of Cape Town and Vice-President of the World Bank in Washington DC.

In her affidavit Dr Ramphele draws on an official report as well as affidavits made by two senior police officers who investigated criminal charges against Gen Mdluli.  She describes the sequence of decisions which FUL seeks to be judicially reviewed: (i) the decision by the Head: Specialised Commercial Crime Unit on 6 December 2011 to withdraw criminal charges of fraud, corruption and money-laundering against Gen Mdluli; (ii) the decision by the Acting National Director of Public Prosecutions on 2 February 2012 to withdraw criminal charges including murder, kidnapping and defeating the ends of justice; (iii) the decision by the National Commissioner: SAPS on 29 February 2012 withdrawing disciplinary proceedings against Gen Mdluli; and (iv) the decision on 31 March 2012 by the National Commissioner to reinstate Gen Mdluli as head of Crime Intelligence.

Dr Ramphele points out that both Gen Jackie Selebi and Gen Bheki Cele were suspended by the Minister of Safety and Security although facing less serious criminal charges (and that currently nearly 600 SAPS officers are under suspension).

Dr Ramphele testifies: “the way in which Gen Mdluli had been dealt with by the respondents reflects an extraordinary degree of a lack of accountability and a breach of a culture of justification under the Constitution which our courts have sought to impose on those who exercise public power.”

She refers also to Gen Mdluli’s extraordinary recent allegations of a conspiracy involving other senior members of SAPS, including the Provincial Commissioner of Police for Gauteng, Gen Mzwandile Petrus, and the Head of the Hawks, Gen Anwar Dramat.  She points out that this claim “itself has generated further mistrust and instability in the SAPS, to such a degree that the Minister has himself had to intervene, by making an unexpected announcement in Parliament on Thursday 10 May.”  The Minister set up a task team to investigate the allegations, and announced that Gen Mdluli would be moved from his current position to another post, not yet determined.

“Patently [this] does not resolve the problem caused by Gen Mdluli’s reinstatement, and his far-reaching claims of conspiracy.  By his conduct, the Minister accepted that there was a need to act, but has not initiated suspension proceedings, or any other measure which would remove Gen Mdluli from active daily service in SAPS …  .  He remains vested with the authority of his rank … able to exercise the powers vested in a police general under the Police Act and related legislation”.

Dr Ramphele contends that the treatment of Gen Mdluli in terms of the various decisions by the respondents “is partial and selective”.

The purpose of the proceedings instituted by FUL is to remedy the series of unlawful and unconstitutional decisions by the respondents, and to give effect to the rule of law.

The court papers will be posted on FUL’s website: http://www.freedomunderlaw.org. (The founding affidavit is embedded below)

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

Contact inquiries:   Prof Hugh Corder

                           Hugh.Corder@uct.ac.za

                           082 337 3317

                           Adv Jeremy Gauntlett SC

                           gauntlett@mweb.co.za

                           082 413 9093

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