This emerges from a March 6 letter from Radebe to acting national police commissioner Lieutenant General Nhlanhla Mkhwanazi, which the Mail & Guardian has seen. The letter contains a report on Radebe's views on internal disciplinary charges laid against Mdluli and his colleague, Major General Solly Lazarus, at about the time that criminal charges against Mdluli were withdrawn. The letter preceded Radebe's March 19 missive, which found that she had no jurisdiction to conduct criminal investigations and that the National Prosecuting Authority (NPA) should institute criminal charges against Mdluli.
The second letter (the one on March 19) to Mkhwanazi noted: "We are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that this matter be referred back to the NPA for the institution of the criminal charges."
In December last year the prosecuting authority withdrew the fraud and corruption charges against Mdluli, and on February 7 a murder charge relating to the 1999 killing of the husband of Mdluli's alleged former lover was also withdrawn. On February 3, police management instituted disciplinary charges against Mdluli. But Mdluli and Lazarus were reinstated on March 27 after a meeting between Police Minister Nathi Mthethwa, Mkhwanazi and Radebe.
This week Mthethwa denied issuing any instruction to Mkhwanazi on the reinstatement. However, he failed to explain his involvement in the exchange of correspondence between Radebe and the acting national commissioner — who is understood to have resisted Mdluli getting his former job back. In radio interviews, Mthethwa implied there was a contradiction between Radebe's two letters, which his meeting was intended to resolve. But Radebe's March 6 letter reveals that she set out clearly that she would deal separately with the disciplinary case. Her letter stated: "This report will be confined to the disciplinary charges … the requested opinion relating to the criminal charges will follow at a later stage." Mthethwa declined to answer further questions this week, including:
- How he became aware of -correspondence between Radebe and Mkhwanazi;
- Whether he informed President Jacob Zuma about it; and
- How the decision to reinstate Mdluli and Lazarus was reached, given that Radebe recommended disciplinary charges against Lazarus and criminal charges against Mdluli should proceed.
But Radebe's March 6 letter also confirms some of the allegations against Mdluli, reveals elements of his defence and shows how weak legal reasoning opened the door for Mthethwa to muddy the waters. Radebe confirms allegations that Mdluli's relatives were included in a round of 250 crime intelligence promotions under his watch. This allegation was raised in the internal crime intelligence report dealing with an aborted Hawks investigation into Mdluli.
The report, drafted by former crime intelligence co-ordinator Major General Mark Hankel, was sent to Radebe in November 2011 and published in full by the M&G last week. The Hankel report alleged that the Hawks were probing "the appointment of [Mdluli's] current wife, her brother and other members of her family, his ex-wife, her daughter and his son". Radebe’s letter confirms that "it is common cause that 250 posts were filled, which included the family of Mdluli and his current wife".
But Radebe also argues, mystifyingly, that, because the appointment of Mdluli's relatives comprised only a small percentage of the total appointments, it negated allegations of nepotism against him. She notes: "Four among 250 is negligible and the motive behind … the inclusion of these charges must be questioned." Radebe also confirms that Mdluli took his then-girlfriend, now wife, on a trip to Singapore paid for from the crime intelligence covert fund.
Mthethwa authorised the trip for the supposed purpose of "viewing and purchasing technical equipment for crime intelligence".
However, both Lazarus and another officer also took their wives, but paid for them out of their own pockets. Mdluli took his then-girlfriend, Theresa Lyons — but charged the expenses to he secret account. Radebe notes: "In respect of the trip to Singapore, we are aware that the auditor general [AG] queried certain expenses related to this trip, in particular the reason for the inclusion of Ms Lyons, a non-employee of the SAPS, on the trip.
"It would also appear that the trip to China in which Mdluli was accompanied by his former wife was queried by the AG. Management of SAPS responded and the AG accepted the response provided in respect of the purpose for the inclusion of Ms Lyons and the role she was to play in the Singapore trip. In addition, the AG accepted the responses pertaining to the China trip."
Citing the auditor general's acceptance of the explanations, Radebe queries the inclusion of these charges against Mdluli and does not appear to consider the possibility that the auditor general may have been misled. But the key area of Radebe's discomfort and seeming confusion relates to the decision to bring disciplinary charges against Mdluli at about the time that criminal charges were withdrawn. She notes: "The timing … becomes vital in our determination as it clearly suggests an ulterior motive and a concerted effort to ensure that Mdluli does not return to his position. This behaviour is tantamount to conduct that is inconsistent with the Constitution and as such must be invalid."
Radebe did not respond to questions on how she arrived at this conclusion, given that the police often delay disciplinary processes pending the outcome of criminal charges. It might have been expected, also, that her legal advisers would take note of the most recent ruling on a similar issue — the Supreme Court of Appeal overturning the famous Nicholson judgment that led to the recall of President Thabo Mbeki. The court held that a prosecution was not automatically invalid because it was initiated for improper motives.
Radebe also felt the fact that only the two top crime intelligence officials (Mdluli and Lazarus) had been charged was indicative of an ulterior motive. She asked: "The question is why? Once again … the only conclusion that can be reached is that this, too, points to another attempt by the investigators to ensure that action is only directed at Mdluli to guarantee his non-return." This "concerted effort" to institute disciplinary charges against Mdluli was unfair, Radebe finds, without citing any legal authority other than the Constitution. She, therefore, finds that the "entire process of the institution of disciplinary charges … must be declared null and void".
* Got a tip-off for us about this story? Email amabhungane@mg.co.za
Source: Mail & Guardian
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