THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case No:  67/2014
In the matter between:

NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS

FIRST APPELLANT
THE HEAD: SPECIALISED COMMERCIAL
CRIME UNIT

SECOND APPELLANT
THE NATIONAL COMMISSIONER: SOUTH
AFRICAN POLICE SERVICE

THIRD RESPONDENT
RICHARD NAGGIE MDLULI

FOURTH APPELLANT
v

FREEDOM UNDER LAW

RESPONDENT

Neutral citation:
National Director of Public Prosecutions v Freedom Under Law
(67/14) [2014] ZASCA 58 (17 April 2014).
Coram:
Mthiyane DP, Navsa, Brand, Ponnan et Maya JJA
Heard:

1 April 2014
Delivered:

17 April 2014

Summary:

Review application – decisions to withdraw criminal charges by
National Prosecuting Authority – reviewable on principle of legality not under the
Promotion of Administrative Justice Act 3 of 2000 – decisions by Commissioner of
Police to terminate disciplinary proceedings and lift suspension of member –
reviewed and set aside under s 6 of PAJA – not competent for the high court to
issue mandatory interdicts to compel prosecution and disciplinary charges.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  North Gauteng High Court, Pretoria (Murphy J sitting as court of
first instance):
The appeal succeeds only to the extent that paragraphs (b), (e) and (f) of the
order of the court a quo are set aside
The orders in paragraphs (a), (c), (d), (g) and (h) of the order by the court a
quo are confirmed but re-numbered in accordance with the changes necessitated by
the setting aside of the orders in paragraph 1.
It is recorded that the following undertaking has been furnished on behalf of
the first respondent:

(a)
To decide which of the criminal charges of murder and related crimes
that were withdrawn on 2 February 2012, are to be reinstituted and to make his
decision known to the respondent within 2 months of this order.

(b)
To provide reasons to the respondent within the same period as to why
he decided not to reinstitute some – if any – of those charges.
4.
There shall be no order as to costs in respect of the appeal.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Brand JA (Mthiyane DP, Navsa, Ponnan et Maya JJA concurring):

[1] This is an appeal against an order of the high court granted at the behest of
the respondent. In substance the order reviewed and set aside four decisions taken
by or on behalf of the first three appellants in favour of the fourth appellant and
directed the first three respondents to reinstate criminal prosecutions and
disciplinary proceedings against him. The appeal is with the leave of the court a quo.
More precise details of the order appealed against will appear from the exposition of
the background that follows. I find it convenient to start that exposition by
presentation of the parties.

The Parties
[2] The first appellant is the National Director of Public Prosecutions (NDPP).
Advocate Nomgcobo Jiba was appointed on 28 December 2011 as the acting NDPP
by the President of the Republic after the suspension from that office of the then
incumbent, Mr Menzi Simelane in consequence of a judgment of this court. The
second appellant is Advocate Lawrence Mrwebi (Mrwebi) who was appointed on 1
November 2011 as Special Director of Public Prosecutions as the Head of the
Specialised Commercial Crimes Unit (SCCU) of the National Prosecuting Authority.

[3] The third appellant is the National Commissioner of the South African Police
Service (the Commissioner). During the time period relevant to these proceedings
that position was occupied first by General Bheki Cele, thereafter by Lieutenant
General Nhlanhla Mkhwanazi, in an acting capacity and finally by General
Mangwashi Victoria Phiyega. The fourth appellant, who took centre stage in these
proceedings, is Lieutenant General Richard Mdluli (Mdluli) who held the office of
National Divisional Commissioner: Crime Intelligence in the South African Police
Service (SAPS), a position also described as Head of Crime Intelligence, since 1
July 2009.

[4] The respondent, Freedom Under Law, is a public interest organisation,
registered as a non-profit company with offices in South Africa and Switzerland. It is
actively involved, inter alia, in the promotion of democracy and the advancement of
respect for the rule of law in the Southern African region. Both its board of directors
and its advisory board are composed of respected lawyers, judges and other leading
figures in society at home and abroad.

Background
[5] It is common cause that on 31 March 2011 Mdluli was arrested and charged
with 18 criminal charges, including murder, intimidation, kidnapping, assault with
intent to do grievous bodily harm and defeating the ends of justice. The murder

charge stemmed from the killing of Mr Tefo Ramogibe (the deceased) on 17
February 1999. From about 1996 until 1998 the deceased and Mdluli were both
involved in a relationship with Ms Tshidi Buthelezi. The deceased and Buthelezi
were secretly married during 1998. Mdluli was upset about this and addressed the
issue on numerous occasions with Ms Buthelezi and the deceased and members of
their respective families. At the time Mdluli held the rank of senior superintendent
and the position of commander of the detective branch at the Vosloorus police
station. Charges of attempted murder, intimidation, kidnapping, et cetera, rested on
allegations by relatives and friends of the deceased and Ms Buthelezi that Mdluli and
others associated with him – including policemen under his command – brought
pressure to bear upon them through violence, assaults, threats, kidnappings and in
one instance rape, with the view to compelling their co-operation in securing the
termination of the relationship between the deceased and Ms Buthelezi. According
to one of the complainants who is the mother of the deceased, Mdluli had on
occasion taken her to the Vosloorus police station where she found the deceased
injured and bleeding. In her presence Mdluli then warned the deceased to stay away
from Ms Buthelezi. The deceased was killed a few days thereafter.

[6] On 23 December 1998 the deceased was the victim of an attempted murder.
He reported the incident to the Vosloorus police station. On 17 February 1999 the
deceased and the investigating officer, Warrant Officer Dhlomo, drove to the scene
in Mdluli‟s official vehicle for the stated purposes of the deceased participating in a
pre-arranged pointing out. According to Dhlomo they were attacked by two unknown
assailants at the scene who shot at them and took away his firearm and the vehicle
in which they were travelling. He ran to a nearby tuck-shop to summon the police.
Upon his return he found that the deceased had been killed. At the time, the matter
never proceeded to trial. Much of the original docket and certain exhibits have since
been lost or have disappeared.

[7] Information about the discontinued investigation re-surfaced after Mdluli was
appointed the Head of Crime Intelligence in 2009. Two senior officers of the

Directorate of Priority Crime Investigation (the Hawks), Colonel Roelofse and
Lieutenant-Colonel Viljoen, were appointed to assist in the renewed investigations
and Mdluli came to be arrested on these charges – to which I shall refer as the
murder and related charges – on 31 March 2011. In the light of the seriousness of
these charges, the then Commissioner of Police, General Bheki Cele, suspended
Mdluli from office on 8 May 2011 and instituted disciplinary proceedings against him.

[8] After Mdluli‟s arrest on the murder and related charges, some members of
Crime Intelligence came forward with information concerning alleged crimes
committed by some of its members, including Mdluli. Lieutenant Colonel Viljoen, who
was involved in the investigation of the murder and related charges, was instructed
to investigate these allegations in conjunction with Advocate C Smith of the
Specialised Commercial Crime Unit (SCCU). Following upon these investigations,
Smith successfully applied for a warrant for Mdluli‟s arrest on charges of fraud and
corruption which was executed on 20 September 2011.

[9] What emerges from the papers filed of record is that the charges of fraud and
corruption originate from the alleged unlawful utilisation of funds held in the Secret
Service account – created in terms of the Secret Services Act 56 1978 – for the
private benefit of Mdluli and his wife, Ms Theresa Lyons. Broadly stated it is alleged
that one of Mdluli‟s subordinates, Colonel Barnard, purchased two motor vehicles
ostensibly for use by the Secret Service but structured the transaction in such a
manner that a discount of R90 000 that should have been credited to the Secret
Service account, was utilised for Mdluli‟s personal benefit. The further allegation was
that those two motor vehicles were then registered in the name of Mdluli‟s wife and
appropriated and used by the two of them.

[10] On 3 November 2011 Mdluli wrote a letter to President Zuma, the Minister of
Safety and Security and the Commissioner stating that the charges against him were
the result of a conspiracy among senior police officers – including the then

Commissioner, General Bheki Cele, and the head of the Hawks, General Anwar
Dramat. The letter also stated, rather inappropriately, that „[i]n the event that I come
back to work, I will assist the President to succeed next year‟ which was an obvious
reference to the forthcoming presidential elections of the ruling African National
Congress in Mangaung towards the end of 2012. The allegations of a conspiracy led
to the appointment by the Minister of a task team which later reported that there was
no evidence of a conspiracy and that the police officers who had accused Mdluli of
criminal conduct had acted in good faith.

[11] On 17 November 2011 Mdluli‟s legal representatives made representations to
Mrwebi in his capacity as Special DPP and head of the SCCU, seeking the
withdrawal of the fraud and corruption charges. These representations again
contended that the charges against Mdluli resulted from a conspiracy against him
involving the most senior members of the South African Police Service. The
representations also indicated that a similar approach had been made to Advocate
K M A Chauke, the DPP South Gauteng, for withdrawal of the murder and related
charges. Mrwebi, in response to the representations made to him, requested a
report from Smith and his immediate superior, Advocate Glynnis Breytenbach, who
both responded with a motivation that the charges should not be withdrawn. Despite
this motivation, Mrwebi decided to withdraw these charges and notified Mdluli‟s
representatives of his decision to do so on or about 5 December 2011. The
circumstances under which Mrwebi‟s decision was arrived at is central to one of the
disputes in this case. I shall revert to this in due course.

[12] On 1 February 2012 Chauke decided to withdraw the murder and related
charges as well. He explained that after he received the representations by Mdluli‟s
legal representatives, he realised that there was no direct evidence implicating
Mdluli in the murder charge. He therefore decided that an inquest should be held
before he proceeded with that charge and that the murder charge should therefore
be provisionally withdrawn pending the outcome of the inquest. To prevent

fragmented trials, so he said, he decided that the 17 charges related to the murder
should also be provisionally withdrawn, pending finalisation of the inquest.

[13] I pause to record that at Chauke‟s request the inquest was held in terms of
the Inquests Act 58 of 1959 by the magistrate of Boksburg who handed down his
reasons and findings on 2 November 2012. His ultimate conclusions make
somewhat peculiar reading, namely that:
„The theory of Mdluli being the one who had orchestrated the death of [the deceased] is
consistent with the facts.‟
And that:
„The death [of the deceased] was brought about by an act prima facie amounting to an
offence on the part of unknown persons. There is no evidence on a balance of
probabilities implicating Richard Mdluli [and his co-accused persons] in the death of the
deceased.‟

[14] I say peculiar, because s 16(2) of the Inquests Act required the magistrate to
determine whether the death of the deceased was brought about by any act or
omission amounting to an offence on the part of any person. The evidence before
him clearly established a prima facie case against Mdluli. That appears to be borne
out by the first conclusion. The second conclusion, which appears to contradict the
first seems to be both unhelpful and superfluous. It was not for the magistrate to
determine Mdluli‟s guilt on a murder charge, either beyond reasonable doubt or on a
balance of probabilities. But if Chauke had any uncertainty about the import of the
magistrate‟s findings he could have asked for clarification or even requested that the
inquest be re-opened in terms of s 17(2) of the Inquests Act. Furthermore, it is clear
that the magistrate‟s findings were wholly irrelevant to the 17 related charges.
Nonetheless it is common cause that no further steps have since been taken by the
prosecuting authorities to reinstitute any of the 18 charges.

[15] I return to the chronological sequence of events. On 29 February 2012 the
Acting National Commissioner of Police at the time, General Mkhwanazi, withdrew

the disciplinary proceedings against Mdluli and on 31 March 2012 he was reinstated
and resumed his office as Head of Crime Intelligence. In fact, shortly thereafter, his
duties were extended to include responsibility for the unit which provides protection
for members of the national executive.

[16] On 15 May 2012 FUL launched the application, the subject of the present
appeal. The notice of motion contemplated proceedings in two parts. Part A sought
an interim interdict, essentially compelling the Commissioner to suspend Mdluli from
office pending the outcome of the review application in part B. In part B FUL sought
an order reviewing and setting aside four decisions, namely:
(a)
The decision made by Mrwebi on or about 5 December 2011 to withdraw the
charges of fraud and corruption.
(b)
The decision by Chauke on or about 2 February 2012 to withdraw the murder
and related charges.
(c)
The decision by the Commissioner of Police on or about 29 February 2012 to
terminate the disciplinary proceedings; and
(c)
The decision by the Commissioner on or about 31 March 2012 to reinstate
Mdluli to his office.

[17] Apart from the orders setting aside the four impugned decisions, FUL also
sought mandatory interdicts:
(a)
directing the prosecution authorities to reinstate the criminal charges against
Mdluli and to ensure that the prosecution of these charges are enrolled and pursued
without delay; and
(b)
directing the Commissioner of Police to take all steps necessary for the
prosecution and finalisation of the disciplinary charges.
On 6 June 2012 the interim interdict sought in part A was granted by Makgoba J.
The application for leave to appeal against that order was unsuccessful and the
interim interdict is thus extant. The review application came before Murphy J who
granted an order (a) setting aside the four impugned decisions as well as (b) the
mandatory interdict sought together with (c), an order for costs in favour of FUL

against the respondents. His judgment has since been reported sub nom Freedom
Under Law v National Director of Public Prosecutions & others 2014 (1) SA 254
(GNP).

FUL’s locus standi
[18] I now turn to the appellant‟s contentions on appeal and I deal first with those
arising from challenges by the NDPP and Mrwebi. These relied mainly on formal and
procedural objections rather than the merits of the case. Included amongst these
formal objections was a challenge to FUL‟s legal standing. However, this challenge
was not pursued in argument. Suffice it therefore to say that in my view the objection
to FUL‟s standing was unsustainable from the start. FUL‟s mission to promote
accountability and democracy and to advance respect for the rule of law and the
principle of legality in this country has been recognised by this court (see eg
Freedom Under Law v Acting Chairperson Judicial Service Commission & others
2011 (3) SA 549 (SCA) paras 19-21). In addition, I agree with the finding by the
court a quo that the matter is one of public interest and national importance (para 1
of its judgment). What I do find somewhat perturbing is the court‟s high praise for Dr
Mamphela Ramphele and Justice Johan Kriegler who deposed to FUL‟s founding
and replying affidavits respectively (see para 4). It needs to be emphasised that all
litigants, irrespective of their status, should be treated equally by our courts. Judges
must therefore be wary of creating the impression – which would undoubtedly be
unfounded in this case – that they have more respect for some litigants or their
representatives than for others.

Reviewability of decisions to withdraw a prosecution
[19] The next challenge by the NDPP, which was embraced by Mrwebi and Mdluli,
related to the reviewability of a prosecutorial decision to discontinue a prosecution.
The issue arising from this is a narrow one. This is so because it is not contended by
the NDPP that decisions of this kind are not reviewable at all. On the contrary, the
NDPP conceded that these decisions are subject to what has become known as a
principle of legality or a rule of law review by the court. The allied issue is whether

these decisions are reviewable under the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). Although the answer to that question is
by no means decisive of the matter. I nonetheless believe the time has come for this
court to put the issue to rest. This belief is motivated by two considerations. First,
because the court a quo had pronounced on the question and held that PAJA is of
application (paras 131-132 of the judgment). Secondly, and more fundamentally, by
the considerations that appear from the following statement by Ngcobo J in Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment
Action Campaign & another as Amici Curiae) 2006 (2) SA 311 (CC) paras 436-438:
„Our Constitution contemplates a single system of law which is shaped by the Constitution.
To rely directly on s 33(1) of the Constitution and on common law when PAJA, which was
enacted to give effect to s 33, is applicable, is, in my view, inappropriate. It will encourage
the development of two parallel systems of law, one under PAJA and another under s 33
and the common law . . . Legislation enacted by Parliament to give effect to a constitutional
right ought not to be ignored. And where a litigant founds a cause of action on such
legislation, it is equally impermissible for a court to bypass the legislation and to decide the
matter on the basis of the constitutional provision that is being given effect to by the
legislation in question . . . It follows that the SCA . . . erred in failing to consider whether
PAJA was applicable. The question whether PAJA governs these proceedings cannot be
avoided in these proceedings.‟

[20] The domain of judicial review under PAJA is confined to „administrative
action‟ as defined in s 1 of the Act. The definition starts out from the premise that
„administrative action‟ is „any decision taken, or any failure to take a decision, by . . .
a natural or juristic person . . . when exercising a public power or performing a public
function in terms of an empowering provision, which adversely affects the rights of
any person and which has direct, external legal effect . . .‟. Mrwebi and Chauke
derived their power to withdraw the criminal charges against Mdluli from the
provisions of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). On
the face of it, their decisions sought to be impugned in this case clearly constituted
„administrative action‟. But s 1(ff) of the definition excludes „a decision to institute or
continue a prosecution‟. The question in the present context is thus – does the

exception extend to its converse as well, namely a decision not to prosecute or to
discontinue a prosecution?

[21] Cora Hoexter Administrative Law in South Africa (2 ed, 2012) at 241-242 is of
the firm view that the intention behind the exception „was to confine review under the
PAJA to decisions not to prosecute. There is less need to review decisions to
prosecute or to continue a prosecution as types of administrative action, since such
decisions will ordinarily result in a trial in a court of law‟. Thus far our courts have,
however, been less decisive. In Kaunda & others v President of the Republic of
South Africa & others 2005 (4) SA 235 (CC) para 84 Chaskalson CJ acknowledged
that:
„In terms of the [PAJA] a decision to institute a prosecution is not subject to review. The Act
does not, however, deal specifically with a decision not to prosecute. I am prepared to
assume in favour of the applicants that different considerations apply to such decisions [as
opposed to the decision to institute a prosecution] and that there may possibly be
circumstances in which a decision not to prosecute could be reviewed by a Court. But even
if this assumption is made in favour of the applicants, they have failed to establish that this is
a case in which such a power should be exercised.‟

[22] The implication is therefore that decisions not to prosecute are not
necessarily excluded from the application of PAJA. Conversely, in Democratic
Alliance & others v Acting National Director of Public Prosecutions & others 2012 (3)
SA 486 (SCA) para 27 Navsa JA stated:
„While there appears to be some justification for the contention that the decision to
discontinue a prosecution is of the same genus as a decision to institute or continue a
prosecution, which is excluded from the definition of “administrative action” in terms of s 1(ff)
of PAJA, it is not necessary to finally decide that question. Before us it was conceded on
behalf of the first and third respondents that a decision to discontinue a prosecution was
subject to a rule of law review. That concession in my view was rightly made.‟

[23] The court a quo (in paras 131-132 of its judgment) found itself in
disagreement with what it described as the obiter dictum of Navsa JA that a decision
to discontinue prosecution is of the same genus as a decision to prosecute. „For the
reasons stated by Professor Hoexter‟ so it held, „a decision of non-prosecution is of
a different genus to one to institute a prosecution. It is final in effect in a way that a
decision to prosecute is not‟.

[24] However, unlike the court a quo I am not persuaded by the reasoning
advanced by Professor Hoexter for the view that she proffers. To say that the validity
of a decision to prosecute will be tested at the criminal trial which is to follow, is, in
my view, fallacious. What is considered at the criminal trial is a determination on all
of the evidence presented in the case of the guilt or lack thereof of the accused
person, not whether the preceding decision to prosecute was valid or otherwise. The
fact that an accused is acquitted self-evidently does not suggest that the decision to
prosecute was unjustified. The reason advanced by the court a quo itself, namely,
that a decision not to prosecute is final while a decision to prosecute is not, is in my
view equally inaccurate. Speaking generally, both these decisions can be revisited
through subsequent decisions by the same decision-maker, by in the one case re-
instituting the prosecution, and by withdrawing the prosecution in the other.

[25] What is called for, as I see it, is to focus on the policy considerations that
underlie the exclusion of a decision to institute or continue to prosecute from the
ambit of PAJA and to reflect on whether or not the same considerations of policy will
apply to a decision not to prosecute or to discontinue a prosecution. In National
Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 35 fn 31 Harms
DP cited a line of English cases that emphasised the same policy considerations
that underlie the exclusion of decisions to prosecute from the PAJA definition of
administrative action. These included Sharma v Brown-Antoine and others [2007] 1
WLR 780 (PC) para 14 and Marshall v The Director of Public Prosecutions
(Jamaica) [2007] UKPC 4 para 17. The first principle established by these cases, as
I see it, is that in England, decisions to prosecute are not immune from judicial

review but that the courts‟ power to do so is sparingly exercised. The policy
considerations for courts limiting their own power to interfere in this way, appear to
be twofold. First, that of safeguarding the independence of the prosecuting authority
by limiting the extent to which review of its decisions can be sought. Secondly, the
great width of the discretion to be exercised by the prosecuting authority and the
polycentric character that generally accompanies its decision-making, including
considerations of public interest and policy.

[26] As I see it, the underlying considerations of policy can be no different with
regard to decisions not to prosecute or to discontinue a prosecution. This view is
supported by English authorities dealing with non-prosecution. So, for instance it
was said in R v Director of Public Prosecutions, Ex Parte Manning [2001] QB 330
para 23:
„[T]he power of review is one to be sparingly exercised. The reasons for this are clear. The
primary decision to prosecute or not to prosecute is entrusted by Parliament to the
[prosecutor] as head of an independent, professional prosecuting service, answerable to the
[National Director of Public Prosecutions] in his role as guardian of the public interest, and to
no-one else.‟
And by Kennedy LJ in R v Director of Public Prosecutions, Ex Parte C [1995] 1 Cr
App R 136 at 139G-140A:
„It has been common ground before us in the light of the authorities that this Court does
have power to review a decision of the Director of Public Prosecutions not to prosecute, but
the authorities also show that the power is one to be sparingly exercised.‟
At 141B-C Kennedy LJ then continued to say:
„From all of those decisions it seems to me that in the context of the present case this court
can be persuaded to act if and only if it is demonstrated to us that the Director of Public
Prosecutions . . . arrived at the decision not to prosecute . . .‟
Whereupon, he proceeded to set out the grounds recognised by the English courts
for interference in decisions not to prosecute. Suffice it to say these grounds are
substantially similar to the ones recognised by our courts as justification for a rule of
law review. The dictum from Kaunda does not indicate that a PAJA review might be
available, but on the assumption made, the suggestion appears to be that in
appropriate circumstances a rule of law review might be apposite.

[27] My conclusion from all this is that:
(a)
It has been recognised by this court that the policy considerations underlying
our exclusion of a decision to prosecute from a PAJA review is substantially the
same as those which influenced the English courts to limit the grounds upon which
they would review decisions of this kind.
(b)
The English courts were persuaded by the very same policy considerations to
impose identical limitations on the review of decisions not to prosecute or not to
proceed with prosecution.
(c)
In the present context I can find no reason of policy, principle or logic to
distinguish between decisions of these two kinds.
(d)
Against this background I agree with the obiter dictum by Navsa JA in DA &
others v Acting NDPP that decisions to prosecute and not to prosecute are of the
same genus and that, although on a purely textual interpretation the exclusion in
s 1(ff) of PAJA is limited to the former, it must be understood to incorporate the latter
as well.
(e)
Although decisions not to prosecute are – in the same way as decisions to
prosecute – subject to judicial review, it does not extend to a review on the wider
basis of PAJA, but is limited to grounds of legality and rationality.

[28] The legality principle has by now become well-established in our law as an
alternative pathway to judicial review where PAJA finds no application. Its underlying
constitutional foundation appears, for example, from the following dictum by Ngcobo
J in Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA
247 (CC) para 49:
„The exercise of public power must therefore comply with the Constitution, which is the
supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality,
which is an incident of the rule of law, is one of the constitutional controls through which the
exercise of public power is regulated by the Constitution.‟

[29] As demonstrated by the numerous cases since decided on the basis of the
legality principle, the principle acts as a safety net to give the court some degree of

control over action that does not qualify as administrative under PAJA, but
nonetheless involves the exercise of public power. Currently it provides a more
limited basis of review than PAJA. Why I say currently is because it is accepted that
„[l]egality is an evolving concept in our jurisprudence, whose full creative potential
will be developed in a context-driven and incremental manner‟ (see Minister of
Health NO v New Clicks SA (Pty) Ltd & others 2006 (2) SA 311 (CC) para 614; Cora
Hoexter op cit at 124 and the cases there cited). But for present purposes it can be
accepted with confidence that it includes review on grounds of irrationality and on
the basis that the decision-maker did not act in accordance with the empowering
statute (see Democratic Alliance & others v Acting National Director of Public
Prosecutions & others 2012 (3) SA 486 (SCA) paras 28-30).

Impugned decisions to withdraw criminal charges only provisional and not
final
[30] This brings me to the further technical challenge by the NDPP, namely that
the impugned decisions by Mrwebi and Chauke were not final, but only provisional.
The contentions underlying this challenge will be better understood against the
statutory substructure of these decisions which is to be found in s 179 of the
Constitution, read with the relevant provisions of the NPA Act. Under the rubric
„prosecuting authority‟ s 179 of the Constitution provides in relevant part:

„(1)
There is a single national prosecuting authority in the Republic, structured in
terms of an Act of Parliament, and consisting of-
(a)  National Director of Public Prosecutions, who is the head of the prosecuting
authority, and is appointed by the President, as head of the national executive; and
(b)
Directors of Public Prosecutions and prosecutors as determined by an Act of
Parliament.

(2)
The prosecuting authority has the power to institute criminal proceedings on
behalf of the state, and to carry out any necessary functions incidental to instituting
criminal proceedings.

(3)
. . .

(4)
National legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice.

(5)
The National Director of Public Prosecutions-
(a)
(b)
(c)
(d)  may review a decision to prosecute or not to prosecute, after consulting the relevant
Director of Public Prosecutions and after taking representations within a period
specified by the National Director of Public Prosecutions, from the following:
(i)
The accused person.
(ii)
The complainant.
(iii)
Any other person or party whom the National Director considers to be
relevant.‟

[31] The national legislation contemplated in s 179 of the Constitution was
promulgated in the form of the NPA Act. The power to institute and conduct
criminal proceedings is given legislative expression in s 20 which provides:
„(1)
The power as contemplated in section 179(2) and all other relevant sections of the

Constitution to –
(a)
institute and conduct criminal proceedings on behalf of the State;
(b)
carry out any necessary functions incidental to instituting and conducting such
criminal proceedings; and
(c)
discontinue criminal proceedings,
vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the
Republic.
(2)
. . .

(3)
Subject to the provisions of the Constitution and this Act, any Director [defined in
s 1 as a DPP] shall, subject to the control and directions of the National Director, exercise
the powers referred to in subsection (1) in respect of –
(a)
the area of jurisdiction for which he or she has been appointed; and
(b)
. . ..‟

[32] Mrwebi and Chauke, who were both DPPs, were therefore authorised by
s 20(3), read with s 20(1)(c), to withdraw the criminal charges against Mdluli. But
because Mrwebi was appointed as a special DPP his powers were limited by the
provisions of s 24(3) which provides:
„A Special Director shall exercise the powers . . . assigned to him or her by the President,
subject to the directions of the National Director: Provided that if such powers . . . include
any of the powers . . . referred to in section 20(1), they shall be exercised . . . in
consultation with the Director of the area of jurisdiction concerned.‟

[33] According to the NDPP‟s argument, the withdrawal of the criminal charges
in this case must also be understood against the background of s 6 of the Criminal
Procedure Act 51 of 1977 (the CP Act). This section draws a distinction between
the withdrawal of criminal charges, before an accused person has pleaded – in
s 6(a) – and the stopping of a prosecution after the accused person has pleaded,
as contemplated in s 6(b). The latter section provides that where the prosecution is
stopped the court is obliged to acquit the accused person, while a withdrawal in
terms of s 6(a) does not have that consequence. A charge withdrawn under s 6(a)
can therefore be reinstituted at any time.

[34] The withdrawal of charges by Mrwebi and Chauke, so the NDPP‟s
argument went, was covered by s 6(a) and not by s 6(b). In consequence, so the
argument proceeded, these decisions were only provisional and therefore not

subject to review. Although I am in agreement with the premise of the argument,
that both decisions to withdraw were taken in terms of s 6(a), my difficulty with its
further progression is twofold. First, I can see no reason why, at common law, a
decision would in principle be immune from judicial review just because it can be
labelled „provisional‟ however illegal, irrational and prejudicial it may be. My
second difficulty is more fundamental. I do not believe a decision to withdraw a
criminal charge in terms of s 6(a) can be described as „provisional‟ just because it
can be reinstituted. It would be the same as saying that because a charge can be
withdrawn, the institution of criminal proceedings is only provisional. As I see it, the
withdrawal of a charge in terms of s 6(a) is final. The prosecution can only be
recommenced by a different, original decision to reinstitute the proceedings.
Unless and until it is revived in this way, the charge remains withdrawn.

[35] The NDPP‟s second argument as to why the impugned decisions were not
final rests on the provisions of s 179(5)(d) of the Constitution. Since in terms of this
section the decisions were still subject to review by the NDPP, so the argument
went, they were only provisional. I have already expressed my reservations about
the proposition that because a decision is provisional it is not subject to challenge,
based on legality or rationality. What the NDPP‟s argument based on s 175(5)(d)
mutated to was the contention that, because the impugned decisions were subject
to an internal review, FUL should have been non-suited for failure to exhaust the
internal remedies available to it. That, of course, is a completely different case.

Exhaustion of internal remedy
[36] The NDPP‟s final argument as to why review proceedings were not
competent, was that FUL had failed to exhaust an internal remedy available to it.
What this contention relied upon was the provision in s 179(5)(d), which enables
the NDPP to review a decision not to prosecute at the behest of any person or
party who the NDPP considers to be relevant. Since I have found a review under
PAJA unavailable, s 7(2) of the Act, which compels exhaustion of internal remedy

as a pre-condition to review, save in exceptional circumstances, does not apply. At
common law the duty to exhaust internal remedies is far less stringent. As Hoexter
(op cit 539) explains, the common law position is that a court will condone a failure
to pursue an available internal remedy, for instance where that remedy is regarded
as illusory or inadequate.

[37] In this case we know that Advocate Breytenbach made a request early on
to the NDPP, which was supported by a 200-page memorandum, that the latter
should intervene in Mrwebi‟s decision to withdraw the fraud and corruption
charges. In addition, the dispute had been ongoing for many months before it
eventually came to court and, during that period, it was widely covered by the
media. But despite this wide publicity, the high profile nature of the case and the
public outcry that followed, the NDPP never availed herself of the opportunity to
intervene. Against this background FUL could hardly be blamed for regarding an
approach to the NDPP as meaningless and illusory in a matter of some urgency.

Challenge to decision to withdraw the fraud and corruption charges
[38] FUL‟s first challenge of this decision rests on the contention that Mrwebi
had failed to comply with the provisions of s 24(3) of the NPA Act in that he did not
take the decision to withdraw the charges „in consultation‟ with the DPP „of the
area of jurisdiction concerned‟ as required by the section. As to the legal principles
involved, it has by now become well established that when a statutory provision
requires a decision-maker to act „in consultation with‟ another functionary, it means
that there must be concurrence between the two. This is to be distinguished from
the requirement of „after consultation with‟ which demands no more than that the
decision must be taken after consultation with and giving serious consideration to
the views of the other functionary, which may be at variance with those of the
decision-maker.

[39] An understanding of the factual basis for the challenge calls for elaboration
of the facts given thus far. The DPP of the area of jurisdiction concerned, as
envisaged by s 24(3), was Advocate Mzinyathi, the DPP of North Gauteng.
Mrwebi‟s version in his answering affidavit is that he briefly discussed the matter
with Mzinyathi on 5 December 2011, after which he prepared an internal
memorandum addressed to Mzinyathi, setting out the reasons why, in his view, the
fraud and corruption charges should be withdrawn. Although Mzinyathi did not
agree with him at that stage, there was a subsequent meeting between the two of
them, together with Advocate Breytenbach, on 9 December 2011. At that meeting,
so Mrwebi said, the other two were initially opposed to the withdrawal of the
charges, but that all three of them eventually agreed that there were serious
defects in the State‟s case and that the charges should be provisionally withdrawn.
However, the problems with this version are manifold. Amongst others, it is in
direct conflict with the contents of Mrwebi‟s internal memorandum of 5 December
2011 from which it is patently clear that by that stage he had already taken the
final decision to withdraw the charges. The last two sentences of the
memorandum bear that out. They read:
„The prosecutor is accordingly instructed to withdraw the charges against both Lt-General
Mdluli and Colonel Barnard immediately.‟
And:
„The lawyers of Lt-General Mdluli will be advised accordingly.‟

[40] An even more serious problem with the version presented in Mrwebi‟s
answering affidavit, is that it was in direct conflict with the evidence that he and
Mzinyathi gave under cross-examination at a disciplinary hearing of Breytenbach.
The transcript of the hearing was annexed to the supplementary founding affidavit
on behalf of FUL. The conflict is set out in extensive detail in the judgment of the
court a quo (paras 47-48). I find a repetition of that recordal unnecessary. What
appears in sum is that Mrwebi conceded in cross-examination that he took a final
decision to withdraw the charges before he wrote the memorandum of 5

December 2011; that at that stage he did not know what Mzinyathi‟s views were;
and that he only realised on 8 December 2011 that Mzinyathi did not share his
views, at which stage he had already informed Mdluli‟s attorneys that the charges
would be withdrawn. According to Mzinyathi‟s evidence at the same hearing,
Mrwebi took the position at their meeting of 9 December 2011 that the charges
had been finally withdrawn and that he was functus officio, because he had
already informed Mdluli‟s attorneys of his decision.

[41] In these circumstances I agree with the court a quo‟s conclusion (para 55)
that Mrwebi‟s averment in his answering affidavit, to the effect that he consulted
and reached agreement with Mzinyathi before he took the impugned decision, is
untenable and incredible to the extent that it falls to be rejected out of hand. The
only inference is thus that Mrwebi‟s decision was not in accordance with the
dictates of the empowering statute on which it was based. For that reason alone
the decision cannot stand.

[42] The court a quo gave various other reasons why Mrwebi‟s impugned
decision cannot stand. These are comprehensively set out in the judgment of the
court a quo under the heading „the withdrawal of the fraud and corruption charges‟
(para 141 et seq). However, in the light of my finding that the decision falls to be
set aside on the basis that it was in conflict with the empowering statute, I find it
unnecessary to revisit these reasons. Suffice it to say that, in the main, I find the
court‟s reasoning convincing and nothing that has been said in arguments before
us casts doubt on their correctness.

The decision to withdraw the murder and related charges
[43] This brings me to the decision by Chauke to withdraw the murder and
related charges. It will be remembered that on Chauke‟s version, he withdrew the
murder charge pending the outcome of the inquest that he had requested and that

he withdrew the 17 other related charges to avoid a fragmented trial. The
contention by FUL was in essence that this decision was irrational. However, as I
see it, the contention has not been substantiated in argument. On the face of it the
decision that the findings at an inquest could perhaps enable him to take a more
informed view of the prospects of the State‟s case with regard to the murder
charge, was not irrational. It is true that the outcome of the inquest could have no
impact on the 17 related charges. But Chauke never thought that it would. As I
understand his reasoning, he always intended to reinstate at least some of the
charges after the inquest, with or without the murder charge. What he tried to
avoid, so he said, was a fragmentation of trials. That line of reasoning I do not find
irrational either, particularly since the evidence supporting the related charges
would also impact on the murder charge. It is true that he could have asked for a
postponement of the 17 related charges pending the inquest, but we know that a
postponement is not for the asking. It could be successfully opposed by Mdluli, in
which event the fragmentation, which Chauke sought to avoid for understandable
reasons, may have become a reality.

[44] FUL‟s real argument, which found favour with the court a quo (para 183) is
that Chauke‟s failure to proceed with the murder and related charges after the
findings of the inquest became available, was irrational. But that decision – or
really his failure to apply his mind afresh to the matter after the conclusion of the
inquest – was not the subject of the review application. It will be remembered that
the review application started in May 2012 while the results of the inquest only
became available in November of that year. Stated somewhat more concisely: I do
not believe the earlier decision to withdraw the charges – which is the impugned
decision – can be set aside on the basis that a subsequent decision, taken in
different circumstances, not to reinstate all or some of those charges, was not
justified. To that extent the appeal must therefore succeed.

[45] However, having said that, senior counsel for the NDPP conceded, rightly
and fairly in my view, that there is no answer to the proposition that at least some

of the murder and related charges are bound to be reinstated. In the light of this
concession he undertook on behalf of his client – which undertaking was
subsequently elaborated upon in writing:
(a)
That the NDPP will take a decision as to which of the 18 charges are to be
reinstated and will inform FUL of that decision within a period of 2 months from this
order.
(b)
If the NDPP decides not to institute all 18 charges, he will provide FUL with
his reasons for that decision during the same period.
I can see no reason why this undertaking should not be incorporated in this court‟s
order and I propose to do so.

Jurisdiction of the high court to review the decision to terminate disciplinary
proceedings
[46] This brings me to the decisions by the Commissioner of Police, to terminate
the disciplinary proceedings against Mdluli and then to reinstate him to his position
on 27 March 2012. Not unlike the NDPP, the Commissioner‟s response to FUL‟s
challenge to these decisions focused mainly on technical objections, rather than to
defend the decisions on their merits. The first technical objection was that the high
court lacked jurisdiction to review the impugned decisions by virtue of s 157 of the
Labour Relations Act 66 of 1995. The court a quo found this argument
fundamentally misconceived (para 227) and I agree with this finding. The
argument rests on the premise that this is a labour dispute, which it is not. It is not
a dispute solely between employer and employee. The mere fact that the remedy
sought may impact on the relationship between Mdluli and his employer does not
make it a labour dispute. It remains an application for administrative law review in
the public interest, which is patently subject to the jurisdiction of the high court.

Mootness

[47] The Commissioner‟s next technical objection was that the impugned
decision had become moot. The factual basis advanced for the contention was
that, shortly after the application had been launched, disciplinary charges were
again initiated against Mdluli – which charges are currently pending – and that he
was again suspended from office, which suspension is still in force. It is common
cause, however, that the new disciplinary charges do not pertain to the murder
and 17 related charges. Nor do they correspond with the fraud and corruption
charges that were withdrawn by Mrwebi. In this light I can find no merit in the
mootness argument. The fact that disciplinary proceedings had been instituted on
charges A and B obviously does not render moot the challenge of a decision to
terminate disciplinary proceedings on charges Y and Z.

Review of a decision to terminate disciplinary proceeding
[48] The Commissioner‟s powers to institute disciplinary charges and to
suspend members of the police derive from regulations published under the South
African Police Services Act 68 of 1995. These powers can be traced back to
s 207(2) of the Constitution which requires the Commissioner to manage and
exercise control over the SAPS. These powers are clearly public powers. That is
why they were promulgated by law and not merely encapsulated in a contract
between the parties. The Commissioner took the decision to institute disciplinary
proceedings against Mdluli and to suspend him pursuant to these powers. When
he decided to reverse those decisions, he did so in the exercise of the same public
powers. It follows that the latter decisions constituted administrative action,
reviewable under the provisions of PAJA.

[49] As the factual basis for the challenge of these decisions, FUL relied in its
founding affidavit on a statement by the then Acting Commissioner, Lieutenant-
General Mkhwanazi, in Parliament that he was instructed by authorities „beyond‟
him to withdraw disciplinary charges and reinstate Mdluli in his office. FUL added
that in doing so Mkhwanazi had failed to make an independent decision which

rendered his actions reviewable. Though Mkhwanazi filed an answering affidavit in
the interim interdict proceedings in part A of the notice of motion, he did not deal
with these allegations. In the answering affidavit filed in part B, the present
Commissioner, General Phiyega, said the following in response to these
allegations by FUL.
„General Mkhwanazi was quoted out of context. As I understood and this is what he later
clarified was that his response was in relation to the issue of the withdrawal of charges,
which falls within the domain of the NPA, which invariably in his view affected the purpose
of the continued suspension and disciplinary charges then. General Mkhwanazi never
received any instructions from above. His confirmatory affidavit will be obtained in this
regard. Should time permit, I will ensure that the copy of the Hansard being the minutes or
the transcription of the parliamentary portfolio committee meetings is obtained and filed as
a copy which will clarify the issue.‟

[50] But despite these undertakings, no confirmatory affidavit was filed by
Mkhwanazi nor was a copy of Hansard provided. In argument before the court a
quo, the Commissioner‟s representatives again undertook to file an affidavit by
Mkhwanazi, but this undertaking was later withdrawn (para 213 of the judgment a
quo). In the premises the court a quo held (para 214) that the Commissioner‟s
explanation was untenable and stood to be rejected. I do not believe this finding
can be faulted. Moreover, after all is said and done, neither Mkhwanazi nor
Phiyega gave any reasons for the impugned decision. The inevitable conclusion is
thus that the decisions were either dictated to Mkhwanazi or were taken for no
reason at all. In either event they fall to be set aside under s 6 of PAJA. This
means that the appeal against the court a quo‟s order to that effect cannot be
sustained.

Appropriate remedy
[51] What remains are issues concerning the appropriate remedy. As we know,
the court a quo did not limit itself to the setting aside of the impugned decisions. In

addition, it (a) ordered the NDPP to reinstate all the charges against Mdluli and to
ensure that the prosecution of these charges are enrolled and pursued without
delay; and (b) directed the Commissioner of Police to reinstate the disciplinary
proceedings and to take all steps necessary for the prosecution and finalisation of
these proceedings (para 241(e) and (f)). Both the NDPP and the Commissioner
contended that these mandatory interdicts were inappropriate transgressions of
the separation of powers doctrine. I agree with these contentions. That doctrine
precludes the courts from impermissibly assuming the functions that fall within the
domain of the executive. In terms of the Constitution the NDPP is the authority
mandated to prosecute crime, while the Commissioner of Police is the authority
mandated to manage and control the SAPS. As I see it, the court will only be
allowed to interfere with this constitutional scheme on rare occasions and for
compelling reasons. Suffice it to say that in my view this is not one of those rare
occasions and I can find no compelling reason why the executive authorities
should not be given the opportunity to perform their constitutional mandates in a
proper way. The setting aside of the withdrawal of the criminal charges and the
disciplinary proceedings have the effect that the charges and the proceedings are
automatically reinstated and it is for the executive authorities to deal with them.
The court below went too far.

Costs
[52] As to the court a quo‟s costs order against the appellants in favour of FUL, I
can see no reason to interfere. Although I propose to set aside some of the orders
granted by the court a quo, it does not detract from FUL‟s substantial success in
that court. On appeal the position is different. Here it is the appellants who
achieved substantial success. Ordinarily this would render FUL liable for the
appellants‟ costs on appeal. But it has by now become an established principle
that in constitutional litigation unsuccessful litigants against the Government are
generally not mulcted in costs, lest they are dissuaded from enforcing their
constitutional rights. (See eg Biowatch Trust v Registrar, Genetic Resources &
others 2009 (6) SA 232 (CC).) Although the rule is not immutable, I find no reason

to deviate from the general approach in this case. Hence I shall make no order as
to the costs of appeal.

[53] The order I propose should therefore reflect the intent:
(a)
To confirm the setting aside of Mrwebi‟s decision to withdraw the fraud and
corruption charges in para (a) as well as the setting aside of the Commissioner‟s
decision to terminate the disciplinary proceedings against Mdluli in para (c) as well
as the setting aside of Mdluli‟s reinstatement by the Commissioner on 28 March
2012 in para (d) of the order of the court a quo.
(b)
To reverse the setting aside of Chauke‟s decision to withdraw the murder
and related charges in para (b) of that order.
(c)
To set aside the mandatory interdicts in paras (e) and (f) of the order;
(d)
To confirm the costs order in paras (g) and (h) of the order; and
(e)
To give effect to the undertaking on behalf of the NDPP with regard to the
reinstitution of the murder and related charges.

[54] In the premises it is ordered that:
The appeal succeeds only to the extent that paragraphs (b), (e) and (f) of the
order of the court a quo are set aside
The orders in paragraphs (a), (c), (d), (g) and (h) of the order by the court a
quo are confirmed but re-numbered in accordance with the changes necessitated by
the setting aside of the orders in paragraph 1.
It is recorded that the following undertaking has been furnished on behalf of
the first respondent:

(a)
To decide which of the criminal charges of murder and related crimes
that were withdrawn on 2 February 2012, are to be reinstituted and to make his
decision known to the respondent within 2 months of this order.

(b)
To provide reasons to the respondent within the same period as to why
he decided not to reinstitute some – if any – of those charges.
4.
There shall be no order as to costs in respect of the appeal.

__________________
F D J BRAND
JUDGE OF APPEAL
.

APPEARANCES:

For the 1st and 2nd Appellants:
L Hodes SC (with him N Manaka, E Fasser)
Instructed by:
State Attorney, Pretoria
c/o State Attorney, Bloemfontein

For the 3rd Appellants:

W R Mokhali SC (with him M Zulu)
Instructed by:
State Attorney, Pretoria
c/o State Attorney, Bloemfontein

For the 4th Appellant:

I Motloung
Instructed by:
Maluleke Seriti Makume Matlala Inc, Germiston
c/o Peyper Attorneys, Bloemfontein

For the Respondent :

S Yacoob (with him I Goodman, N van der Walt)

Instructed by:

Cliffe Dekker Hofmeyr, Johannesburg

Matsepes, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
17 April 2014

STATUS
Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v FREEDOM UNDER
LAW (67/14) [2014] ZASCA 58 (17 APRIL 2014)

Freedom Under Law (FUL) sought an order in the North Gauteng High Court
to set aside four executive decisions; (a) the decision by the Head of the
Specialised Commercial Crime Unit of the National Prosecuting Authority,
Advocate Mrwebi to withdraw criminal charges of fraud and corruption against
Lieutenant General Richard Mdluli (Mdluli) the National Head of Crime
Intelligence of the South African Police Services; (b) the decision by the
Director of Public Prosecutions, South Gauteng, Advocate Chauke, to
withdraw criminal charges of murder and seventeen related crimes ─
including kidnapping, intimidation and assault ─ against Mdluli; (c) the
decision by the National Commission of the South African Police Services (the
Commissioner) (to withdraw disciplinary proceedings against Mdluli); and (d)
the decision by the Commissioner to terminate Mdluli’s suspension from office
and to reinstate him in his position.

The North Gauteng High Court set aside these four decisions and in addition
ordered the executive authorities involved to proceed with the criminal
prosecution and the disciplinary proceedings without delays.

On appeal the SCA confirmed the setting aside of the decisions in (a), (c) and
(d) but held that (b) could not be described as irrational. In addition the SCA
did not confirm the High Court’s orders to proceed with the criminal
prosecution and the disciplinary proceedings without delay because, so the
SCA held, this would constitute undue interference with the functions of the
executive and a transgression of the separation of powers.