The Supreme Court of Appeal (SCA) on Friday dismissed Berning Ntlemeza’s bid to return as head of the Hawks pending his finalisation of an application for leave to appeal filed in the same court.
The SCA also ordered Ntlemeza to pay the costs of this application‚ including the costs of two counsel‚ out of his own pocket.
In March‚ the high court in Pretoria reviewed and set aside Ntlemeza’s appointment as head of the Hawks.
It came to that conclusion following an earlier high court judgment in Pretoria‚ which made adverse remarks concerning Ntlemeza’s lack of honesty and integrity.
However‚ Ntlemeza applied for leave to appeal in the high court and his application was dismissed with costs on April 13.
During the same hearing in Pretoria‚ the Helen Suzman Foundation (HSF) and Freedom under Law (FUL) sought an enforcement and execution of the March order‚ despite pending appeals to other courts. The high court granted their application.
Ntlemeza petitioned the SCA last month‚ seeking the suspension of the execution order of the high court pending his appeal to the SCA.
The court heard the matter last week.
The effect of the Friday SCA order is that Ntlemeza would be unable to return to his post pending the final determination of the present application for leave to appeal‚ in relation to the merits of his appointment.
In its judgment on Friday‚ the SCA said it might appear strange and even confusing that there were two parallel processes being conducted in an appeal court in one case.
The SCA said this was a result of the provisions of section 18 of the Superior Courts Act.
The section gives an aggrieved party an automatic right of appeal “to the next highest court” against a decision of the high court ordering the execution of an earlier ruling issued by it‚ pending the finalisation of an appeal or an application for leave to appeal.
In Friday’s judgment‚ Judge of Appeal Mahomed Navsa said the high court could not be criticised for concluding that HSF and FUL had proved‚ on a balance of probabilities‚ that the public would suffer irreparable harm if the high court did not grant the execution order‚ and that Ntlemeza would not suffer irreparable harm if he did not remain in his post.
The court noted that Nathi Nhleko’s successor as police minister‚ Fikile Mbalula‚ withdrew his application for leave to appeal in April.
“The present Minister played no part in this appeal. Simply put‚ the present Minister did not seek to defend Minister’s Nhleko’s decision to appoint General Ntlemeza.”
Navsa said although the present appeal was being pursued by Ntlemeza personally‚ it became apparent towards the end of the proceedings at the SCA that his case was funded by the state.
“The propriety of that course is beyond our scrutiny. There is of course no reason in the present case for a costs order to attach in any other way than personally‚” Navsa said.