Mokwele lawyer rejects NPA’s provisional withdrawal, seeks permanent stay

The lawyer for Crime Intelligence brigadier Dineo Mokwele has rejected the National Prosecuting Authority’s provisional withdrawal of fraud and corruption charges and says the defence may ask the High Court for a permanent stay of prosecution.

Defence rejects provisional withdrawal

The charges relate to allegations that Mokwele’s appointment to head Crime Intelligence’s Technical Support Services unit was irregular. The Investigating Directorate Against Corruption (IDAC) originally brought the charges, which were later examined during proceedings at the Madlanga Commission.

The NPA on Monday provisionally withdrew the charges against Mokwele and other Crime Intelligence officials, saying further investigative steps were required before a final decision could be made. Mokwele’s lawyer James Ndebele told 702 that he would not accept the provisional withdrawal.

“I’m not accepting the provisional withdrawal of charges,”

Ndebele said provisional withdrawals leave accused persons in uncertainty because charges can be reinstated later. He described the practice as one that “leaves accused persons in legal limbo with the threat of prosecution indefinitely hanging over their heads.”

Calls for finality and possible court action

The defence said it would have preferred a permanent withdrawal and believes investigations had been completed. Ndebele said the defence had been told in court that IDAC had finalised its investigations and was ready to proceed to trial, and that further documents had been obtained through a subpoena.

Questioning the timing of the NPA decision, Ndebele noted the provisional withdrawal came shortly before the matter was due back in court on 3 September. He said the defence was considering rejecting the provisional withdrawal and “consider instituting a permanent stay of prosecution in the High Court.”

“We are not obliged to accept the State’s provisional withdrawal of the charges. In fact, I am inclined to advise my client to reject the NDPP’s provisional withdrawal of charges and consider instituting a permanent stay of prosecution in the High Court,”

Ndebele also said the defence had considered possible civil action and that any such action would be pursued at the appropriate time, adding:

“Yes we have and she will be at the appropriate time. Remember she’s got six months from the time that the charges are withdrawn or alternatively from the time that she became aware of the fact that the arrest itself was unlawful,”

NPA response

NPA spokesperson Kaizer Kganyago defended the provisional withdrawal and said accused persons were within their rights to reject it. He said safeguards had been put in place to prevent uncertainty and that a provisional withdrawal did not prevent charges from being reinstated if new information emerged.

“It is within their right to decide whatever they want to decide,”

Kganyago said the NDPP reviewed the matter after concerns emerged about IDAC, representations from the defence and developments at the Madlanga Commission. He said the decision to review “as the NDPP using the powers of the Constitution” included a requirement that no fresh decision to prosecute or re-enrol the matter could happen without written approval from the NDPP.

He also said administrative concerns about how the investigation was handled would be dealt with separately from the prosecutorial decision and that the NPA was reviewing issues at IDAC.