Freedom Under Law

After the launch of the Freedom Under Law application, new disciplinary proceedings were instituted against General Mdluli, and on 25 May 2012, General Mkhwanazi suspended General Mdluli again, reversing his earlier decision due to public pressure.

“after the Freedom Under Law application was launched, new disciplinary proceedings were instituted against General Mdluli and on the 25th of May 2012, General Mkhwanazi recanted his earlier decision and suspended General Mdluli again. Public pressure was building”

General Mkhwanazi colluded with illegal interference by the Minister and President in relation to the Freedom Under Law litigation to cover up executive interference in SAPS, which he knew was unlawful.

“General Mkhwanazi's collusion with the illegal interference of the Minister and the President is even more stark... he assisted to cover up the executive interference in the SAPS, which he knew to be unlawful”

General Mkhwanazi did not admit to the allegations of executive interference in his answering affidavit to the Freedom Under Law urgent interdict, instead opposing the urgent interdict on spurious grounds.

“General Mkhwanazi did not admit the relevant facts. Instead, he deposed to an affidavit which did not respond to the allegations but nevertheless opposed on spurious grounds the urgent interdicts ought to prevent General Mdluli from executing police functions”

Judge Makgoba expressed concern about allegations of political interference in the disciplinary process and noted General Mkhwanazi had not disputed them in his answering affidavit in Part A proceedings of Freedom Under Law.

“Makgoba J expressed concern about the allegations of political interference in the disciplinary process and noted that Mkhwanazi had not disputed them in his answering affidavit”

The Supreme Court of Appeal judgment noted that General Mkhwanazi was instructed by higher authorities to withdraw disciplinary charges and reinstate General Mdluli, and that Mkhwanazi failed to make an independent decision, rendering his actions reviewable.

“Freedom Under Law 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... Freedom Under Law added that in doing so Mkhwanazi had failed to make an independent decision, which rendered his actions reviewable”

General Mkhwanazi did not deal with allegations of political interference in his answering affidavit during interdict proceedings in Part A of the Freedom Under Law case.

“Though Mkhwanazi filed an answering affidavit in the interdict proceedings in Part A of the Notice of Motion, he did not deal with these allegations”

Freedom Under Law's complaint of 6 July alleged criminal interference penetrating the police and executive overreach involving ministerial interference in police management in 2012, of which General Mkhwanazi was a party and helped cover up for almost eight years, revealing it only in 2020.

“his complaint on the 6th of July last year had two legs to it. One was criminal interference or penetration of the police, and the second leg was the executive overreach, the Ministerial interference in the management of the police, which is exactly what happened in 2012. And he was a party to it, and not only was he a party to it, he helped cover it up for the better part of eighty years. And only in 020 does he come out with it”

Minister's suspension of General Mdluli was influenced by an urgent application launched by Freedom Under Law on 15 May.

“soon the same day that FUL launched the urgent application, you are aware that General Mkhwanazi did suspend General Mdluli again? Ten days later. The Freedom Under Law case was launched on the 15th of May”

Freedom Under Law application was brought in two parts, Part A being an urgent interdict and Part B a review application.

“the Freedom Under Law application was brought in two parts. The Part A was an urgent interdict ... the main application is in Part B, the review application”

The court found that Acting Commissioner General Mkhwanazi was instructed by authorities beyond him to withdraw disciplinary charges and reinstate General Mdluli, without making an independent decision, making his actions reviewable.

“The factual basis for the challenge by FUL is that it relied on statements made by then Acting Commissioner General Mkhwanazi in Parliament, that he was instructed by authorities beyond him to withdraw disciplinary charges and reinstate Mdluli ... Mkhwanazi had failed to make an independent decision which rendered his actions reviewable”