MP Fadiel Adams has gone to the Gauteng High Court in Pretoria seeking to overturn National Director of Public Prosecutions Andy Mothibi’s decision to withdraw criminal charges against national police commissioner General Fannie Masemola, arguing that the decision was not rationally connected to the information before the prosecution authority.
In court papers dated September 29, Adams, an MP and president of the National Coloured Congress, says the case is a review application directed at Mothibi’s decision following his consideration of evidence gathered by IDAC, a Case Assessment Panel report and an independent senior counsel’s report.
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“The question before the Honourable Court is whether a rational connection exists between the decision in question … and the information that was before the NDPP prior to making the decision,” Adams says.
His papers rely on affidavits from Major-General Fred Kekana, Major-General Senobea Julie Hankins, Ramasela Flora Matjeke and Lieutenant-General Puleng Patricia Dimpane. Businessman Vusimuzi Matlala and whistleblower Babita Deokaran also feature prominently in Adams’s account of the disputed SAPS medical-services tender.
Adams says Pretoria has jurisdiction
Adams says the Pretoria court has jurisdiction because “the principal cause of action, the decision to withdraw the charges, was taken within the jurisdiction” of the court.
He adds that Mothibi and Masemola exercise their statutory and constitutional functions within its jurisdiction.
Adams also sets out his locus standi, or legal standing, under the Constitution and the Promotion of Administrative Justice Act (PAJA).
He says he approaches court “acting in our own interests” under section 38(a) of the Constitution, as a member of, or in the interest of, a group or class of persons under section 38(c), “in the public interest” under section 38(d), and in association with NCC members under section 38(e).
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He further relies on section 6(1) of PAJA, which he says provides that “any person may institute proceedings in a Court or a tribunal for the judicial review of an administrative action”.
Adams traces PAJA to section 33 of the Constitution, which provides for administrative action that is lawful, reasonable and fair.
He says the Act gives effect to that constitutional right and defines administrative action to include a decision by an organ of state exercising public power or performing a public function.
Application brought under PAJA
He invokes section 6(2) of PAJA and argues that the withdrawal should be reviewed because the action was “not rationally connected to the information before the administrator”.
On the timing of the application, Adams tells the court he “acted with due expedition” and obtained input from “internal and external technical experts”.
He says there is “no prejudice to the Respondents” and describes the case as one “of great importance and consequence for significant numbers of people on a continuing basis”.
Adams asks the court to grant the orders contained in his notice of motion, saying Mothibi’s decision “cannot stand” and “falls to be reviewed and set aside”.
- MP Fadiel Adams has filed a review application in the Gauteng High Court to overturn NDPP Andy Mothibi's decision to withdraw criminal charges against national police commissioner General Fannie Masemola.
- Adams argues that Mothibi's decision was not rationally connected to the evidence presented, which included reports by IDAC, a Case Assessment Panel, and an independent senior counsel.
- Adams claims the Pretoria High Court has jurisdiction as the decision to withdraw charges was made within its jurisdiction and both Mothibi and Masemola execute their functions there.
- Adams bases his legal standing on sections 38(a), (c), (d), and (e) of the Constitution and section 6(1) of the Promotion of Administrative Justice Act (PAJA).
- The application seeks the setting aside of Mothibi's decision under section 6(2) of PAJA on grounds that the withdrawal of charges was not rationally connected to the information before the NDPP.
