The Madlanga commission, tasked with upholding public accountability, has turned its focus to the controversial return of Ekurhuleni police chief Julius Mkhwanazi. Central to its inquiry is Adv Kemi Behari, the suspended head of Ekurhuleni's legal unit, who is accused of advising against disciplinary action for Mkhwanazi, citing 'material evidentiary gaps'. The proceedings on Monday shed light on the complexities of internal investigations and the potential for perceived obstruction within public service.
Key Takeaways
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Adv Kemi Behari informed the Madlanga commission that Mkhwanazi's return was due to 'material evidentiary gaps' in the case against him.
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These gaps included outstanding statements from a whistleblower journalist, Mkhwanazi's superior, and a fleet manager.
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Behari advised Col Hennie Erasmus against proceeding with a disciplinary hearing without these statements, fearing the city would lose the case.
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Commissioners expressed strong skepticism regarding Behari's motives and the nature of his advice, questioning why he did not recommend extending Mkhwanazi's suspension while seeking further evidence.
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Behari eventually conceded that the initial allegations against Mkhwanazi — misrepresentation, dishonesty, and corruption — were sufficient for disciplinary action.
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The commission has recommended that Behari, along with Linda Gxasheka, be referred to the police for further investigation and potential prosecution.
The Defence of "Material Gaps"
Julius Mkhwanazi, embattled Ekurhuleni police chief, faced allegations of fitting blue lights to a fleet belonging to an alleged cartel member, Vusimuzi "Cat" Matlala. Col Hennie Erasmus, the investigating officer, sought Adv Kemi Behari's counsel in 2023 regarding the extension of Mkhwanazi's suspension. Behari's response was pivotal: he highlighted the significant risk of pursuing a disciplinary hearing without first addressing what he termed 'material gaps' in the evidence.
These purported gaps were specific: two outstanding statements from a whistleblower involved in the blue lights allegations, a crucial statement from Mkhwanazi's superior, Goodman Mzolo, and an account from a fleet manager. The fleet manager's testimony was particularly noted for suggesting a historical precedent of similar agreements, which Behari seemed to imply could weaken the case. Behari maintained that, in his professional opinion, the absence of these statements would ultimately lead to the city's failure in prosecuting Mkhwanazi.
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Commission's Scrutiny and Behari's Concessions
The Madlanga commission, however, found it difficult to accept Behari's explanation without question. Commissioner Sesi Baloyi challenged Behari's logic, asking, "You lead him [Erasmus] and say, 'Go find these things,' and you don't say, 'Because you are going to look for these things, you can extend his suspension.' Can you just explain that behaviour?" Behari's defence — "I did not say I will support your extension... When I guided at that time, I didn't have to say what the grounds for extension were, and yes, I reopened the investigation, [and] I didn't deal with it totally; maybe I ought to have done that" — did little to assuage the commission's doubts.
Commission chairperson Mbuyiseli Madlanga pressed Behari on the practicality of expecting a journalist, often protected by ethical considerations, to submit a statement. Behari affirmed he did expect it. Furthermore, Commissioner Sandile Khumalo directly questioned Behari on whether his emphasis on the 'gaps' implicitly conveyed to Erasmus that there was no substantive case against Mkhwanazi. Behari conceded this point, a significant admission that underscored the commission's concerns about the nature of his legal guidance.
Crucially, Behari later conceded that the allegations against Mkhwanazi, which included misrepresentation, dishonesty, and corruption, were indeed sufficient grounds for disciplinary action. This admission contradicted his earlier stance, fueling the commission's suspicion that his advice may have served to shield Mkhwanazi rather than ensure due process.
Public Sentiment
Across the nation, public sentiment regarding such cases tends to oscillate between frustration and a yearning for transparent governance. There is a palpable demand for accountability, particularly when high-ranking officials are involved. The public often perceives delays or procedural complexities as potential avenues for evasion, leading to cynicism about the justice system. The Madlanga commission's diligent pursuit of answers is viewed by many as a vital step towards restoring faith in public institutions and ensuring that no individual is above the law, regardless of their position.
Conclusion
The Madlanga commission's investigation into Adv Kemi Behari's role in the Mkhwanazi case continues to unravel layers of alleged complicity and procedural misguidance. The contentious issue of 'material gaps' and Behari's subsequent concessions paint a concerning picture of how disciplinary processes can be influenced. The recommendation to refer Behari and Linda Gxasheka for further police investigation and potential prosecution signifies the commission's firm stance against perceived dereliction of duty and underscores the imperative for unfettered accountability within Ekurhuleni's public sector. The ultimate outcome of this investigation will set a significant precedent for transparency and ethical conduct in public service across the country.