Judgement was reserved on Wednesday in the North Gauteng High Court in Pretoria where the Helen Suzman Foundation is trying to have Lieutenant General Berning Ntlemeza removed as national head of the Hawks.
At the heart of its argument, the HSF said because of two judges findings against Ntlemeza, police minister Nkosinathi Nhleko’s decision to appoint him was invalid and unlawful.
The HSF wanted Ntlemeza urgently suspended while the matter regarding the legality of his appointment went ahead.
Disputing the urgency with which HSF had brought the matter on Tuesday, both Nhleko and Ntlemeza’s advocates said the HSF had had months in which to contest Ntlemeza’s appointment.
However Judge Neil Tuchten ruled the matter had merit and ruled it be heard on Wednesday, the first knock for the respondents.
The second came when plaintiffs counsel advocate David Unterhalter SC asked to essentially reopen his case in order to delve deeper into the matter of the “irreparable harm” which would be caused if Ntlemeza stayed at his post, and Tuchten agreed, despite objections from opposing counsel.
After Unterhalter had played heavily on the judgements upon which HSF is basing its application, Advocate William Mokhari for Nhleko noted it was a simple principle of law for a presiding judge to give counsel notice he may make an adverse finding, would counsel like to address him on the matter?
“Here the learned judge sat there, asked no questions, nothing, then when the judgement comes, it’s a bombshell,” Mokari said.
“Then the the integrity of the litigant has been cut into pieces,” he added.
It was part of his strategy to sow doubt in Tuchten’s mind as to how much weight he should give the judgments.
He cautioned the court against interfering with the executive and legislative powers of Nhleko and Ntlemeza conferred upon them by law.
In February 2015 Judge Elias Matojane found there was no basis for Ntlemeza’s suspension of Major – General Sibiya. He also found Ntlemeza’s decision to suspend Sibiya was made in bad faith, arbitrary, and not rationally connected to the purpose for which its was taken.
The decision was unlawful, and found Matojane to be biased, dishonest,that he lacked integrity and honour and had made false statements under oath.
HSF have contended it took the organisation six months to bring proceedings to court because it had waited so long for responses to queries it had sent to the respondents.