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The Court of Appeal
Constitutional Court Johannesburg
The judgment, written by Judge Fritz Brand, looks in detail at the reasons offered for keeping the civil action and the various arguments for scrapping it.
He wrote that the history of the civil action "reveals its archaic origin", disclosing elements of old English law, which suggested that the husband has some "proprietary interest in the person and the services of the wife". Brand wrote that it seemed the husband in this matter was motivated by anger and a desire for revenge, and that it is likely that this is often the case. It is also enormously costly to bring such a claim, he said. Any damages likely to be awarded pale in comparison with the legal costs involved, making it far beyond the means of most people. Commenting on the result, the attorney acting for RH said it had been a "long and ugly fight" and that he was sure his client, now overseas, would be relieved to hear the outcome.
That decision was not challenged further, so this week's hearing before judges Fritz Brand, Azhar Cachalia, Zukisa Tshiqi, Steven Majiedt and Boissie Mbha will be the first chance that the appeal court has had to examine the issue.
"That is not the kind of submission that I want in my court," presiding judge Fritz Brand said.
Appeal court Judge Fritz Brand held that prosecutorial decisions are in principle reviewable, and that the principle of legality empowers the court to undertake a review of a decision, in this case, not to prosecute.
Turning to the murder and related charges, Brand found that Chauke's decision to withdraw these charges could not be found to be irrational. On Murphy's finding that Chauke's failure to proceed with the charges after the inquest constituted an irrational decision, Brand held that this point had not formed the basis of FUL's review application, so this part of the appeal had to succeed. But the judge also noted that counsel for the NDPP conceded that some of the murder and related charges were bound to be reinstated and that the NDPP would make a decision within two months. If he decided not to reinstate all 18 charges, Chauke would have to provide reasons to FUL for this decision. Brand did not agree with the order of the court to reinstate charges, holding that this constituted "inappropriate transgressions of the separation of powers doctrine". Thus, a court is precluded from impermissibly assuming the powers of the NDPP.
The crux of FUL's 2012 Pretoria high court application was based on the following decisions - as outlined in the SCA judgment by Judge Fritz Brand - made by police management and the NPA with regards to charges against Mdluli:
In the SCA judgment, Brand upheld Murphy's setting aside of the decisions by Mrwebi and the police's management with regards to the corruption charges and internal disciplinary charges against Mdluli. However, Brand noted that while Murphy ordered that these be reinstituted "without delays", the SCA did not confirm this decision, "because ... this would constitute undue interference with the function of the executive and a transgression of the separation of powers".