No judgment in legal row over Hawks boss

Judgment was reserved yesterday in the North Gauteng High Court in a case in which the Helen Suzman Foundation (HSF) is seeking to challenge Police Minister Nathi Nhleko’s 2015 appointment of head of the Hawks, Mthandazo Ntlemeza.

Yesterday, Judge Selby Baqwa questioned whether the appointment was a sham.

This was in response to counsel for Nhleko, William Mokhari’s argument that the ultimate prerogative to hire Ntlemeza lay with the minister.

It has emerged that since 2012, Ntlemeza had faced several police investigations.

HSF earlier this year applied for a judicial review of the appointment, based on the comments of Judge Elias Matojane last year that Ntlemeza was biased‚ dishonest and lacked integrity and honour.

He made these comments during his judgment regarding the suspension of former Gauteng Hawks boss Major General Shadrack Sibiya.

The foundation castigated Nhleko for suggesting Matojane’s comments were inadmissible in his decision to hire Ntlemeza.

“In this application, the minister claims that judicial pronouncements do not bind him, they are essentially irrelevant to his decision-making and their effect may be overridden by the mere say-so of the wrong-doer.”

But Nhleko’s lawyers have argued in court these remarks did not form part of Matojane’s judgment and were, therefore, not binding.

“Remarks made were orbiters and did not form part of the ratio dicendi of the order granted. No order of dishonesty was made against the second respondent, nor was there a finding of dishonesty made against the second respondent,” their head of argument reads.

They also argued it was incumbent on the minister to take those adverse remarks into account and determine whether they militated against the appointment of the second respondent.

However, Nhleko’s lawyers argued the minster did take the remarks into consideration and that he had concluded they were not an obstacle to Ntlemeza’s appointment.

The minister’s decision in not accepting the criticism as a fact was not irrational, the lawyers added.

Nhleko’s team said the HSF’s argument that Ntlemeza was hired without the concurrence of Cabinet fell flat as Nhleko’s answering affidavit and the dispatch of the record, “conspicuously demonstrate that the decision to appoint the second respondent was taken with concurrence of Cabinet”.

Judgment is likely to be delivered next year.