The High Court of South Africa, Gauteng Local Division sentenced former Crime Intelligence head, Richard Mdluli, and Colonel Mthembeni Mthunzi to five-years imprisonment, following their conviction on charges of kidnapping, intimidation, two counts of assault with intent to do grievous bodily harm and two counts of common assault in June 2019.
They were each sentenced to three years for the two counts of kidnapping, two years for each of the two counts of assault with intent to do grievous bodily harm and one year for each of the two counts of common assault.
The sentences were ordered to run concurrently, resulting in an effective sentence of five years.
Subsequent to the imposed sentence, both accused brought an application for leave to appeal against conviction and sentence, citing that the court misdirected itself and that the conviction was based on evidence of a single witness. Senior State Advocate Deon Barnard, argued during their leave to appeal application in the High Court today that a court of law may convict on evidence of a single witness and that there was no misdirection on the part of the court as it holistically considered evidence presented in court and considered the triad factor (interest of justice, personal circumstances of the accused as well as interest of society) in dispensing a suitable sentence.
He further argued that a custodial sentence would serve as a deterrent and consolation for victims, citing that the two accused were senior police officials that abused power, leaving the victims of their crimes in a devastating state.
Judge Ratha Mokgoatlheng dismissed their leave to appeal and ruled that there were no prospects of success on appeal.
The pair were acquitted on the charge of defeating the ends of justice. The conviction on the charge of intimidation was rescinded following the 2019 Moyo judgement of the Constitution Court of South Africa that ruled that the Intimidation Act 72 of 1982 was unconstitutional and deemed it invalid.
The case dates from 1999 when Oupa Ramogibe reported a case of attempted murder with the Vosloorus police station, where Mdluli was a station commander at the time.
The court heard evidence that Ramogibe allegedly had an affair with Richard Mdluli’s customary wife, Tshidi Buthelezi, and married her in 1998, without Mdluli’s knowledge. Their actions angered Mdluli and together with his co-accused, kidnapped Ramogibe.
In 2011, Mdluli, Mthunzi and two others, Nkosana “Killer” Ximba and Samuel Dlomo were charged with 16 counts ranging from murder, attempted murder, intimidation, kidnapping, assault, grievous bodily harm, conspiracy to commit murder and defeating and/or obstructing the course of justice.
The docket was brought to the NPA and in April 2012, following representations lodged by Mdluli to the office of the Director of Public Prosecutions (DPP) in the Gauteng Local Division to have the prosecution against him reviewed, The DPP, Advocate Andrew Chauke, took a decision to provisionally withdraw all 16 charges and referred the matter for an inquest hearing to establish the circumstances surrounding the death of Ramogibe and to determine, whether or not, there was anyone that could be held criminally liable for the death of Ramogibe.
Adv. Chauke provisionally withdrew all charges pending the outcome of the inquest hearing so as to avoid a fragmented trial.
In September 2012, Magistrate Jurg Viviers who presided over the inquest hearing to establish the circumstances surrounding the death of Ramogibe cleared Mdluli and co-accused of any involvement in the murder of Ramogibe. After considering her judgement, the DPP decided to withdraw the murder charge.
Freedom Under Law (FUL) approached the High Court in Pretoria in a quest to set aside the NPA’s decision to withdraw the charges of murder as well as charges of fraud and corruption that were withdrawn by Advocate Lawrence Mrwebi in 2011, in his capacity as Head of the National Prosecutions Service (NPS). FUL cited that the decisions were irrational and Judge Murphy ruled that the NPA must reinstate the charges and that the decision by the office of the DPP was irrational. His decision was set aside by a full bench at the Supreme Court of Appeals (SCA) following an appeal lodged by the NPA to set aside Judge Murphy’s decision. Judge Brandt of the SCA ruled that, the High Court has no authority to instruct the NPA to reinstate the charges and said that the DPP’s decision was rational, but ordered that the matter be sent for a review with the office of the National Director of Public Prosecutions (NDPP).
The DPP in the Gauteng Local Division, Adv Chauke commends the collective efforts of Captain Mark Mclean and Adv Deon Barnard and extends his gratitude to retired Senior Counsel, Adv Zaais Van Zyl for leading this successful prosecution.