Berning Ntlemeza causing irreparable harm to Hawks - David Unterhalter
06 April 2016
Adv William Mukhari, acting for minister, says matter not urgent; judgement reserved in HSF/FUL application
Judgment reserved in bid to have Hawks head removed
Pretoria - Judgment was reserved in the High Court in Pretoria in an application to have the appointment of Hawks head Berning Ntlemeza set aside.
The Helen Suzman Foundation and Freedom Under Law approached the court, seeking an urgent interdict prohibiting Ntlemeza from leading the Hawks or making any decisions.
During the proceedings on Wednesday, previous judgments in matters involving Ntlemeza came under the spotlight, with legal counsels for the police minister and Ntlemeza trying to punch holes in them.
Advocate David Unterhalter SC, representing HSF and FUL, told the court that the appointment of Ntlemeza was unlawful and used previous judgments to back his argument.
"The appointment is unlawful and my client and the public have a right to have those occupying offices being lawfully appointed," he said.
The cases in question refer to the suspensions of KwaZulu-Natal Hawks boss Major General Johan Booysen and Gauteng head Shadrack Sibiya.
After Booysen was suspended by Ntlemeza, he went to court to have the suspension overturned. In that case in November 2015, Judge Anton Van Zyl set aside the suspension and found that Ntlemeza had ignored key evidence in the bid to suspend Booysen, and that there was no indication he had considered material details Booysen submitted to defend himself against allegations of racketeering.
In another judgment in the High Court in Pretoria in March 2015, Judge Elias Matojane had to deal with an application by Ntelemeza to overturn the lifting of the suspension of former Gauteng Hawks boss Shadrack Sibiya, also implicated in the rendition of the Zimbabweans.
In that judgment, News24 reported that Matojane found that Ntlemeza had withheld information and made false statements under oath while seeking leave to appeal the court's ruling overturning Sibiya's suspension in March.
Sibiya was eventually fired in August last year after a disciplinary inquiry relating to the renditions.
Unterhalter said the two previous cases indicated that Ntlemeza had used his office to settle scores. He referenced the Sibiya matter where Motojane said the suspension was in bad faith.
"Do we live in a state where we are content to allow people to occupy this office where they have been frowned upon by the courts of law in the discharge of the very office that is now in question, to allow persons to conduct that office on an arbitrary basis with bad faith, where they use bad faith in doing what they do? That very same conclusion is reached in the Booysen case," he said.
Unterhalter also told the court about the irreparable harm that was being done by Ntlemeza continuing to be in charge of the elite crime fighting unit.
Advocate William Mukhari, for the minister, argued that the case to remove Ntlemeza was not urgent, as the appointment had taken place more than six months ago. Mukhari questioned both judgments and went as far as saying that Motojane, in his case, had been emotional after being accused of meeting with the counsel of the applicants.
"We need to be careful of jumping on a judgment which is written and where we don’t even know the surrounding circumstances. The applicants, have they approached Mr Booysen or his lawyers? They are talking about Booysen and so on, but they don’t even have his affidavit," Mukhari said.
"With due respect to any judge, the simple principle of law is that if you’re likely to make damning findings against somebody, you then say I’m likely to make the following findings and I would like to give you the opportunity to address me fully on this. Here a judge sits there, asks no single question, then the judgment comes, it’s a bombshell. The integrity of litigant is being cut into pieces. That is not acceptable, especially when it’s very clear from the leave to appeal that the judgment emanates from the anger from the judge, that he has been accused of having spoken to the other side," said Mukhari.
He added that there was no urgency in the matter. He also asked why they had waited so long before approaching the court to set aside the appointment. Mukhari said it was not fair to allow a person to carry out duties and a couple of months later approach court and say he is not fit to do so.
Judge Neil Tuchten asked Mukhari if that should be the case, even if the minister’s decision was found to be flawed.