OPINION: The Berning question
At a time when South Africa is crying for leadership in the police, it comes as nothing less than an insult for police minister Nathi Nhleko to appoint someone a court has found is dishonest and lacks integrity to head the Directorate for Priority Crime Investigation, known as the Hawks.
The minister announced yesterday that Major General Berning Mthandazo Ntlemeza is with immediate effect the head of the specialised unit. Nhleko praised the career policeman with 34 years of experience for his commitment to the service, having served in several units and gained significant managerial experience. But all of this is surely of little value when one considers the findings in the High Court in Pretoria just a few months ago.
In March Judge Elias Matojane found that Ntlemeza's decision to suspend then Gauteng Hawks head Shadrack Sibiya was unlawful and invalid. Sibiya was the subject of an Independent Police Investigative Directorate (Ipid) investigation for his involvement in the arrest and rendition of five Zimbabwean suspects in 2010.
Appointed as the acting head of the unit at the time, Ntlemeza lodged an application for leave to appeal. On the morning of 9 March, Ntlemeza's counsel filed his affidavit with Motojane's registrar, where he made staggering allegations against the judge. "It is disturbing, in my view, that one party to litigation will privately engage with a judge who is required to preside over the matter and agree on the date and time suitable to the exclusion of the respondent's legal representative," he said.
Ntlemeza had accused the judge of meeting with Sibiya's legal team behind closed doors to reach agreements without including the police's counsel in such discussion. Matojane took such claims seriously. "I cannot just turn a blind eye to the contemptuous, false allegations of impropriety that third respondent makes against me in his affidavit," he said in his ruling on 23 March.
Matojane referred the matter to deputy judge president Aubrey Ledwaba to address Ntlemeza's allegations. Matojane sad it became apparent that "the allegations of wrongdoing on my part were absurd and malicious as the parties exchanged correspondence among themselves and copied my registrar and not myself.
"Such unfounded accusations have serious consequences on the administration of justice and fundamentally affect the public perception of the courts."
Matojane then turned to the merits of the application, where he found that Ntlemeza's failure to disclose to the court that there were two conflicting Ipid reports into the rendition matter, and that he did not explain why he solely relied on the one report which implicated Sibiya, demonstrated that he "is biased and dishonest".
"To further show that the Ntlemeza is dishonest and lacks integrity and honor, he made false statements under oath," the judge continued.
Ntlemeza claimed in his affidavit that Sibiya's subordinates felt threatened, and that a police officer who had implicated him had died under mysterious circumstances. "All these allegations are a fabrication as, according to the deceased death certificate, he died of natural causes.
"Under the circumstances, and having regard for the vindictive and injudicious conduct of the respondent, I'm unable to find there is a reasonable prospect of success of appeal," said Matojane.
Six months after this ruling, Nhleko has permanently appointed Ntlemeza to head up the Hawks, but the SAPS Act is quite clear on the matter. He simply cannot be appointed.
Under Section 17 CA, which deals with the appointment of the Hawks head, Subsection 1 states:
The Minister, with the concurrence of Cabinet, shall appoint a person who is -
a South African citizen; and
b) a fit and proper person,
a fit and proper person,
with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned…
It is clear from Matojane's findings that Ntlemeza does not fit the bill. So why exactly does he remain in the powerful position of leading the police's supposedly independent investigative wing?
Nhleko has disregarded the judge's findings. "The comments by the judge, they just remain comments… which we also do not know what actually informed them," he said at the press conference after the announcement. "One would have expected that such conclusions could have been arrived at after interrogation and cross examine of whatever the issues could have been. To arrive then at such a conclusion and issue an order to that effect (without cross-examination, the) comments were just comments by the honorable judge."
The minister's contempt for the court is unsurprising, when considering comments he made on 29 March, when he met with senior managers at the Ipid head offices in Pretoria to discuss the suspension of Robert McBride. A transcript of that meeting was filed in court as part of supplementary affidavits in Mcbride's constitutional challenge of the police minister's powers to unilaterally suspend the head of the watchdog body. "But it also happens that you have some elements in the judiciary, for an example, they are quite interesting," said Nhleko. "They meet with characters to produce certain judgments. You know this thing is becoming a common feature of our judiciary."
Those comments by Nhleko, which he has up until this point not denied making, also appear to have reached the ears of chief justice Mogoeng Mogoeng. Just two weeks ago he met with President Jacob Zuma, in the aftermath of government's apparent disregard for a court order in the case relating to Sudanese leader Omar Al-Bashir. But, it seems he is surely aware of what Nhleko said in this meeting, and that may well have played into the decision by himself, and the heads of the country's courts, to request this meeting in the first place. Mogoeng specifically referred to people in authority who had made claims about judges, but had not laid complaints with the Judicial Service Commission, and it must have been Nhleko he was talking about.
Nhleko has other history when it comes to questions about his respect not just for the rule of law, and judges, but also for the Public Protector. It should not be forgotten that it is he who has repeatedly claimed the Public Protector is wrong to suggest that President Jacob Zuma should pay back some of the money spent by government on his home at Nkandla.
Certainly, a pattern appears to be emerging, Nhleko has ignored the Public Protector, claimed some judges are corrupt, and now appointed someone to the position of head of the Hawks despite a judicial finding that they are a liar.
Considering that there is established case law on the definition of 'fit and proper', and that other appointments (such as that of former NPA head advocate Menzi Simelane) have been struck down on this basis, it seems very likely that a legal challenge to this appointment will soon be lodged.
_Barry Bateman is a senior reporter at _ Eyewitness News . He is the co-author of Behind The Door: the Oscar and Reeva Story. Follow him on Twitter: @barrybateman