Forensic investigator Paul O’Sullivan has vowed to approach the courts urgently to stop KwaZulu-Natal police commissioner Lieutenant-General Nhlanhla Mkhwanazi from being appointed as the next national head of the Hawks.
O’Sullivan says his organisation, Forensics for Justice, will launch a legal challenge if acting Police Minister Firoz Cachalia proceeds with the appointment without first suspending the process or allowing public participation.
In correspondence sent to Cachalia on October 29, O’Sullivan raised concerns that the proposed appointment could be inconsistent with provisions of the South African Police Service (SAPS) Act.
“Whilst I do not wish to cross swords with you, I need to make it clear that any attempt to appoint Lt General Mkhwanazi will be met with an urgent judicial review to prevent such an appointment,” O’Sullivan wrote.
His warning followed Cachalia’s announcement that he had started the process of appointing Mkhwanazi to lead the Directorate for Priority Crime Investigation (DPCI), better known as the Hawks.
The minister has since placed a memorandum before Cabinet, requesting its approval of the proposed appointment in terms of section 17CA of the SAPS Act.
Under the law, the national head of the DPCI must be a South African citizen who satisfies the prescribed requirements and is appointed by the minister with Cabinet’s concurrence.
O’Sullivan maintains that Mkhwanazi does not satisfy the requirement that the person appointed must be fit and proper to occupy the position.
He argued in his letter that the proposed appointment would violate section 17CA(1)(b) of the Act.
To support his objection, O’Sullivan referred to allegations contained in submissions he previously made to Parliament’s ad hoc committee investigating allegations of police corruption and the Madlanga Commission of Inquiry.
These included documents submitted to Parliament in February and March, followed by additional submissions to the commission in June.
O’Sullivan alleges that the material contains information linking Mkhwanazi to serious criminal conduct. However, the allegations have not, in themselves, established criminal wrongdoing by the KwaZulu-Natal police commissioner.
He further argued that the outstanding investigations he claims involve Mkhwanazi should prevent him from being considered for the position at this stage.
O’Sullivan included indexes of the documents with his email, saying they should be examined before Cabinet makes a decision.
He also sent copies of the correspondence to officials in the Presidency, requesting that the concerns be brought to Cabinet’s attention.
O’Sullivan drew a comparison with the controversial appointment of former Hawks boss Berning Ntlemeza, which was overturned after a legal challenge.
The Helen Suzman Foundation and Freedom Under Law had approached the courts to contest Ntlemeza’s appointment, arguing that government had failed to take into account adverse judicial findings about his integrity.
In June 2017, the Supreme Court of Appeal upheld the ruling setting aside Ntlemeza’s appointment.
O’Sullivan said Forensics for Justice had supported the legal challenge at the time and was prepared to rally civil society organisations to oppose Mkhwanazi’s proposed appointment.
He indicated that his organisation would pursue a similar route if Cachalia ignored the objections raised in his correspondence.
O’Sullivan has called on the minister to put the appointment on hold until the investigations he referred to have been concluded.
He has also proposed an alternative process in which government advertises the position, considers applications, draws up a shortlist and allows members of the public to participate in meetings before a final candidate is selected.
He wants the appointment process to be reopened rather than proceeding with the current proposal involving Mkhwanazi.
Cabinet has not yet communicated its decision on Cachalia’s recommendation.
O’Sullivan is awaiting confirmation that his correspondence has been received before deciding on his next legal move.