National Director of Public Prosecutions v Freedom Under Law

Lieutenant General Richard Mdluli, Head of Crime Intelligence in the SAPS, was charged in 2011 with 18 criminal offences, including murder and related crimes arising from the 1999 killing of Tefo Ramogibe, as well as later charges of fraud and corruption linked to the misuse of Secret Service funds. Following representations by Mdluli’s legal team, senior prosecutors within the National Prosecuting Authority withdrew the fraud and corruption charges (December 2011) and the murder and related charges (February 2012). Around the same time, the National Commissioner of Police terminated disciplinary proceedings against Mdluli and reinstated him to office. Freedom Under Law (FUL), a public interest organisation, brought a review application in the North Gauteng High Court to set aside these decisions and sought mandatory interdicts compelling the reinstitution of prosecutions and disciplinary proceedings. The High Court granted the relief. The NDPP, senior prosecutors and Mdluli appealed to the Supreme Court of Appeal.

The appeal succeeded in part. The SCA set aside the High Court’s mandatory interdicts compelling the reinstitution of criminal prosecutions and disciplinary proceedings, but confirmed the setting aside of the impugned prosecutorial and disciplinary decisions. The NDPP furnished an undertaking to reconsider which criminal charges should be reinstituted and to provide reasons. No order as to costs was made on appeal.

The case is a leading authority on the reviewability of prosecutorial decisions in South African law. It clarified that decisions to withdraw or discontinue prosecutions fall outside PAJA but remain reviewable under the principle of legality. The judgment reinforced the constitutional control of public power while simultaneously protecting prosecutorial independence, and it confirmed that courts may not compel prosecutions through mandatory interdicts.