Give a Hawk a bad name

Pretoria High Court Judge Elias Matojane's remarks that Lieutenant-General Berning Ntlemeza was dishonest and biasedhave come back to haunt the Hawks boss.

These remarks form the basis of the legal bid by Freedom Under Law and The Helen Suzman Foundation to have Police Minister Nathi Nhleko's decision to appoint Ntlemeza to the top Hawks post declared irrational and set aside.

Matojane delivered his assessment during a judg ment last year dismissing Ntlemeza's decision to suspend Gauteng Hawks boss Shadrack Sibiya, who was implicated in the illegal rendition of several Zimbabweans in 2010.

Matojane said Ntlemeza "elected to withhold" a report and docket from the Independent Police Investigative Directorate that would have enabled the court "to make a proper assessment of the strength or otherwise of the case against Sibiya".

The lobby groups argued yesterday that Nhleko's failure to take these remarks into consideration resulted in his appointing someone who should not occupy the leadership position.

David Unterhalter SC, for the lobbies, said the matters raised in Matojane's judgment disqualified Ntlemeza from the position, saying of grave concern was that the selection panel that interviewed Ntlemeza was not made aware of the "adverse" remarks.

"The [minister's] decision is reviewable as there was no rationale in his exercise of power. He did not satisfy the legal requirement in making this appointment."

He said Matojane's findings could have been "appealed and they were never appealed against, therefore they are binding".

But Nhleko's lawyer, William Mukhari SC, countered this by saying these were remarks made in judgment and were not the decision of the court.

He said suggestions that what was said in a judgment was a decision of the court was problematic because it meant there were a "lot of decisions out there".

Mukhari said it was wrong to say Nhleko did not take the remarks into consideration and that he could not take "a decision based on remarks on matters not properly ventilated".

Mukhari asked the court to rather refer the matter back to the minister instead of setting Ntlemeza's appointment aside.

He also asked the court not to ask the two organisations to pay the legal fees in the case if the government won, because "it is an important matter that raises complex issues of whether remarks made in the course of a judg ment are findings".

Ntlemeza's legal representative is set to make his submissions when the matter resumes today .