Real progress thanks to Mdluli judge

By David Lewis

Real-life courtroom dramas are at their best when, without rhetorical flourish, a judge or advocate lays out a clear case by drawing on incontestable facts and unimpeachable arguments.

By these standards, the handing down this week by Judge Ephraim Makgoba of his decision to interdict Lieutenant General Richard Mdluli and Minister of Police Nathi Mthethwa must rate as gold-standard courtroom drama.

The non-governmental organisation Freedom Under Law asked the court to interdict Mdluli from performing any policing function pending a review of the decision by the National Prosecuting Authority to withdraw criminal charges against him.

Freedom Under Law also asked the court to interdict the minister from assigning any policing functions to Mdluli.

Corruption Watch and the Social Justice Coalition applied to be joined as applicants in these pending review proceedings.

The real drama arose not from the fact that the court granted the interdict but rather from the judge’s reasoning, which expressed in the clearest terms what I believe the vast majority of South Africans have been thinking for months.

In granting an urgent interdict, the judge based his conclusions on three sets of facts.

First, he pointed out that “the allegations against (Mdluli) are no ordinary allegations of misconduct.

Murder, defeating the ends of justice, fraud and money laundering are serious criminal acts which go to the fabric of public order and security.”

Second, he argued that the SAPS was no ordinary institution but rather one that bore the critical constitutional duty “to prevent, combat and investigate crime, to maintain public order, protect and secure the inhabitants of the republic and uphold and enforce the law”.

As such, “the serious allegations of criminal conduct levelled against (Mdluli) affect the very foundation of the constitutional duties required of (the) SAPS” and that the “SAPS has a duty to act decisively and promptly against any of its members against whom allegations of criminal conduct have been levelled”.

Thirdly, Mdluli is no ordinary policeman but a senior member of the SAPS entrusted with crime intelligence.

It followed that “while these allegations remained unresolved (Mdluli’s) very presence in the senior echelons of the SAPS will necessarily erode the function he and the SAPS as a whole are entrusted with”.

So why has Mdluli been suspended, reinstated and resuspended? Why have criminal charges been laid and lifted?

Why has the Labour Relations Act been abused to defend a senior police general accused of the most heinous crimes?

The judgment implicitly raises important questions about the Labour Relations Act.

Was it meant for police generals seeking to escape criminal charges?

Or disgraced parastatal heads claiming millions? Or was it meant to protect workers from abusive bosses?

This matter is far from over. Much filth will yet flow. But Makgoba’s common sense charts the path to resolving this issue once and for all.

This piece originally appeared in City Press on 10 June 2012.