National Director of Public Prosecutions v Freedom Under Law

The fourth appellant, Lt-General Richard Mdluli, held the position of Head of Crime Intelligence in the South African Police Service. On 31 March 2011, he was arrested and charged with 18 criminal charges including murder, intimidation, kidnapping and assault related to the 1999 killing of Tefo Ramogibe. Mdluli and the deceased had both been involved with the same woman, Ms Tshidi Buthelezi. On 20 September 2011, Mdluli was arrested on separate charges of fraud and corruption relating to alleged unlawful use of Secret Service account funds. On 8 May 2011, the then Commissioner suspended Mdluli and instituted disciplinary proceedings. On or about 5 December 2011, Advocate Mrwebi (second appellant, Special Director of Public Prosecutions) decided to withdraw the fraud and corruption charges. On 1 February 2012, Advocate Chauke (DPP South Gauteng) withdrew the murder and related charges pending an inquest. On 29 February 2012, the Acting Commissioner withdrew the disciplinary proceedings, and on 31 March 2012 Mdluli was reinstated as Head of Crime Intelligence. The respondent, Freedom Under Law, a public interest organisation, launched a review application challenging all four decisions.

• Whether decisions to withdraw criminal charges or not to prosecute are reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or only under the principle of legality
• Whether the exclusion in s 1(ff) of PAJA of 'a decision to institute or continue a prosecution' extends to decisions not to prosecute or to discontinue a prosecution
• Whether decisions to withdraw charges were provisional or final and therefore reviewable
• Whether Freedom Under Law had locus standi to bring the application
• Whether FUL was required to exhaust internal remedies before approaching the court
• Whether Mrwebi's decision to withdraw the fraud and corruption charges complied with s 24(3) of the NPA Act requiring consultation with the DPP of the area
• Whether Chauke's decision to withdraw the murder and related charges was irrational
• Whether the Commissioner's decisions to terminate disciplinary proceedings and reinstate Mdluli constituted reviewable administrative action
• Whether it was competent for the high court to issue mandatory interdicts compelling prosecution and disciplinary proceedings

1. The appeal succeeds only to the extent that paragraphs (b), (e) and (f) of the order of the court a quo are set aside. 2. The orders in paragraphs (a), (c), (d), (g) and (h) of the order by the court a quo are confirmed but re-numbered. 3. It is recorded that the NDPP undertakes: (a) to decide which of the criminal charges of murder and related crimes withdrawn on 2 February 2012 are to be reinstituted and make his decision known to the respondent within 2 months; (b) to provide reasons to the respondent within the same period as to why he decided not to reinstitute some charges, if any. 4. No order as to costs in respect of the appeal.

The binding legal principles established are: (1) Decisions not to prosecute or to discontinue prosecutions, while excluded from review under PAJA by virtue of s 1(ff), remain subject to judicial review on the grounds of legality, including irrationality and failure to comply with the empowering statute. (2) The exclusion in s 1(ff) of PAJA of 'a decision to institute or continue a prosecution' must be understood to incorporate decisions not to prosecute or to discontinue prosecution, as they are of the same genus and subject to the same policy considerations of preserving prosecutorial independence. (3) A decision to withdraw criminal charges under s 6(a) of the Criminal Procedure Act is a final decision (not provisional merely because charges can be reinstituted), and is therefore subject to judicial review. (4) When s 24(3) of the NPA Act requires a Special Director to exercise powers 'in consultation with' the DPP of the area, this requires concurrence between the two functionaries, not merely that views be heard and considered. Failure to genuinely consult renders the decision unlawful. (5) Decisions by the Police Commissioner to terminate disciplinary proceedings and reinstate a suspended member constitute administrative action reviewable under PAJA. (6) Courts may not issue mandatory interdicts compelling prosecuting authorities to prosecute or police to pursue disciplinary proceedings, as this violates the constitutional separation of powers and impermissibly assumes executive functions.

Brand JA made several non-binding observations: (1) He noted that legality is an evolving concept in South African jurisprudence whose full creative potential will be developed in a context-driven and incremental manner. (2) He cautioned that judges must be wary of creating the impression that they have more respect for some litigants or their representatives than for others, regardless of their status, as all litigants should be treated equally. (3) He observed that the magistrate's findings at the inquest made 'peculiar reading' in appearing to both support and reject a prima facie case against Mdluli, and noted that the magistrate's role was not to determine guilt on any standard of proof but merely whether the death was brought about by an act amounting to an offence. (4) He noted that in constitutional litigation, unsuccessful litigants against the Government are generally not mulcted in costs lest they be dissuaded from enforcing their constitutional rights, though the rule is not immutable. (5) He expressed reservations about whether a decision can be immune from judicial review simply because it is labeled 'provisional', however illegal, irrational and prejudicial it may be.

This case is a landmark judgment on several key issues in South African administrative and constitutional law: (1) It definitively settled that decisions not to prosecute or to discontinue prosecutions are excluded from PAJA review (extending the s 1(ff) exclusion beyond its literal text) but remain reviewable on legality grounds including rationality and compliance with empowering legislation. (2) It reinforced the independence of prosecutorial decision-making while maintaining judicial oversight through legality review. (3) It clarified the limits of judicial intervention in executive functions, holding that while courts can review and set aside unlawful executive decisions, they cannot issue mandatory orders compelling prosecutors to prosecute or police to pursue disciplinary proceedings, as this violates the separation of powers doctrine. (4) It confirmed the standing of public interest organisations like Freedom Under Law to challenge governmental decisions affecting the rule of law and public interest. (5) It demonstrated the courts' willingness to scrutinize decisions affecting high-ranking government officials and reject implausible explanations, reinforcing accountability. The case had significant political implications given Mdluli's senior intelligence position and arose during a politically sensitive period.