O’Sullivan threatens legal action if Mkhwanazi becomes Hawks head

Forensic investigator Paul O’Sullivan has threatened urgent court action to block the appointment of KwaZulu-Natal police commissioner Lieutenant-General Nhlanhla Mkhwanazi as the new national head of the Hawks.

O’Sullivan warned acting Police Minister Firoz Cachalia that his organisation, Forensics for Justice, would challenge the appointment unless government suspends the process or opens it to public scrutiny.

READ MORE: Cachalia touts Mkhwanazi to be new Hawks head

In an email dated October 29, which Sunday World has seen, O’Sullivan accused Cachalia of pursuing an appointment that could violate the South African Police Service 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.”

The warning came hours after Cachalia announced that he had initiated the process to appoint Mkhwanazi as national head of the Directorate for Priority Crime Investigation (DPCI), commonly known as the Hawks.

Cachalia has submitted a Cabinet memorandum seeking concurrence for the appointment, as required by section 17CA of the SAPS Act.

The legislation requires the minister, with Cabinet’s concurrence, to appoint a South African citizen who meets the statutory requirements for the position.

O’Sullivan argues that Mkhwanazi fails the law’s requirement that the national head must be a fit and proper person.

“It cannot be legally possible that Lt General Mkhwanazi could be appointed as National Head of DPCI, as such an appointment would be in breach of Section 17CA (1) (b) of the Police Service Act,” he wrote.

O’Sullivan based his objection on allegations he previously placed before Parliament’s ad hoc committee investigating police corruption and the Madlanga Commission of Inquiry.

He referred Cachalia to submissions he made to Parliament in February and March, followed by further submissions to the Madlanga Commission in June.

He claims those submissions contain evidence implicating Mkhwanazi in serious crimes, although his allegations do not establish criminal wrongdoing.

READ MORE: ‘PKTT kidnapped me to implicate Mkhwanazi rivals’ – KZN cop

“There are far too many outstanding criminal investigations against Lt General Mkhwanazi to enable him to be currently considered a fit and proper person,” O’Sullivan wrote.

He attached indexes identifying documents that he believes Cachalia should examine before proceeding with the appointment.

O’Sullivan also copied officials in the Presidency, seeking to place the allegations before those involved in the appointment process.

“Please share this e-mail with the cabinet so they have knowledge that the man you are asking them to endorse is NOT a fit and proper person for appointment as National Head of DPCI.”

O’Sullivan invoked the previous legal battle over former Hawks head Berning Ntlemeza, whose appointment ultimately collapsed following a successful court challenge.

The Helen Suzman Foundation and Freedom Under Law challenged Ntlemeza’s appointment, arguing that the government had ignored adverse judicial findings concerning his integrity.

The Supreme Court of Appeal upheld the decision setting aside Ntlemeza’s appointment in June 2017.

O’Sullivan says Forensics for Justice supported that litigation and stands ready to mobilise civil society again.

“Forensics for Justice are ready, willing and able to motivate civil society to mount a similar legal challenge, as we did against the appointment of the corrupt Ntlemeza ten years ago,” he wrote.

READ MORE: Abrahams, Ntlemeza at centre of new twist in Bozwana murder case

He urged Cachalia to delay the appointment until authorities resolve the criminal investigations he claims Mkhwanazi faces.

O’Sullivan alternatively wants the government to invite applications, shortlist candidates and hold public meetings before choosing the next Hawks head.

“We call upon you to start again, with a transparent public process, instead of making a unilateral appointment of a person who is patently unfit for the high office in question.”

Cabinet has yet to announce its decision on Cachalia’s proposal, while O’Sullivan has demanded an acknowledgement of his letter before taking further legal steps.

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