Judges David Mabuse‚ Jody Kollapen and Selby Baqwa made the comments as part of a judgment in an application to review the appointment of controversial Hawks head Major General Berning Ntlemeza.
The court ruled that Ntlemeza’s appointment was invalid.
The judgment was just the latest in a drawn out case questioning the legality of Ntlemeza’s appointment.
The Helen Suzman Foundation and Freedom Under Law brought the case to the high court‚ arguing that two previous judgments had found that Ntlemeza lacked integrity and was dishonest.
They asked the court to determine whether Ntlemeza’s appointment was “lawful‚ rational‚ procedurally fair and otherwise constitutional”‚ whether Nhleko and the Cabinet abused their statutory and constitutional discretion in respect of the appointment‚ whether the minster and the Cabinet could lawfully conclude that Ntlemeza was a fit and proper person‚ and whether they took into consideration all facts before the appointment.
In their judgment‚ the judges said: “What has now come out quite clearly following the aforegoing remarks is that the minister was aware of the remarks made in the judgments.”
“He nevertheless took the view that they could be ignored in the exercise of his powers. The minister simply brushed aside a considered opinion of a superior court. The question here is not one of discretion but whether the person who has been described by such judicial pronouncement can be appointed …” the judgment said.
The court also referred to the controversy regarding Menzi Simelane’s 2009 appointment as the head of the National Prosecuting Authority‚ which was contested all the way up to the Constitutional Court.
“This was a quintessential example of the minister completely ignoring and brushing aside remarks by a court. Was the minister entitled to ignore such judicial pronouncement? Once again one has to refer to the Simelane case‚” the court said.
It said it was found that “Simelane’s credibility‚ honesty and integrity and conscientiousness” was questioned in court‚ as Ntlemeza’s credibility was in court.
In March 2015 High Court Judge Elias Matojane ruled that Ntlemeza “lacks integrity and honour” and had made false statements under oath. He was acting Hawks head at the time.
Advocate David Unterhalter SC‚ for the applicants‚ previously told the court the two judgments were binding‚ saying the very significant determinations should preclude such a person occupying such a position.
“Findings can be appealed and they were never appealed against‚ therefore they are binding‚” he said.
The groups brought the application last year‚ but failed to convince the court that the matter was urgent or prove that Ntlemeza’s continued stay as the head of the elite unit had the potential to cause irreparable harm.
Francis Antonie‚ the Helen Suzman Foundation’s director‚ said: “I am very very pleased that this matter has been resolved the way it has been. It is a unanimous judgment of the court of a full bench.”
“In the case of the Hawks‚ we have been involved for more than seven years. We are not going to let this go … and I am please to say we have still got the fight in us to make sure that our corruption agencies are not corrupt or unlawful. So we are carrying on‚” he said.
Antonie said he needed to study the judgment to make further statements.
Following the judgment‚ Freedom Under Law said: “It is to be hoped that the minister will accept the judgment and proceed to find a suitable person to fill this vital niche in our criminal justice system.”
After Friday’s judgment the ANC released a statement saying it “notes and respects” the judgment.
“This judgment follows an admission made by the minister of police‚ comrade Nathi Nhleko‚ to Parliament last year that an error had been made in the procedure to appoint General Ntlemeza. The ANC trusts therefore that today’s judgment brings this matter to finality‚” the statement said.
Nhleko’s spokesperson‚ Sandile Ngidi‚ said the minister would respect the judgment‚ but would need more time to study it before he can comment.