18/04/2017 11:26 SAST | Updated 18/04/2017 12:38 SAST

If Ntlemeza Tries To Return To Work, It Could Be A Criminal Offence

The former Hawks head could face legal sanction if he returns to work next week, says an expert.

Siphiwe Sibeko / Reuters

Embattled former Hawks head Berning Ntlemeza faces a possible contempt of court conviction should he decide to show up for work next week, as he's promised to do.

A month ago, the High Court in Pretoria set aside the appointment of Ntlemeza, declaring his appointment unlawful and invalid.

Lobby groups Freedom Under Law and the Helen Suzman Foundation brought the application seeking to undo Ntlemeza's appointment. They believed that former police minister Nathi Nhleko erred when he appointed Ntlemeza, because he ignored two judges who previously found that Ntlemeza lacked integrity and was dishonest.

But Ntlemeza plans to challenge the court's findings at the Supreme Court of Appeal, and until then, he believes he is a member of The Hawks.

Ntlemeza's lawyer, Comfort Ngidi told eNCA that Ntlemeza intends returning to work next Monday. He is currently on leave.

This has pitted him against new Police Minister Fikile Mbalula, who decided against appealing the judgment that ruled Ntlemeza's appointment to be unlawful.

Mbalula has even called for Ntlemeza to respect the court's decision and not report for duty. One of Ntlemeza's former deputies has been appointed as acting head of the Hawks.

He wrote to Ntlemeza this week, according to City Press: "You are hereby informed to hand in all the assets of the employer, including tools of trade, within 24 hours from receipt of this letter and vacate the office".

But Ntlemeza told City Press that only Parliament could remove him, citing the Police Act that says that Parliament must remove the head of the Hawks -– an attempt to protect the independence of the institution.

But legal expert James Grant said on Tuesday Ntlemeza was "dead wrong", adding that the law was "as clear at is can be" on the issue.

He said that Ntlemeza seems to believe that he has been fired, when this is not the case. His appointment was set aside, which is a different legal issue entirely, he said.

"He is not the head of the Hawks anymore, and that's not because he has been fired but because his appointment is invalid. Parliament doesn't have to sign off on the invalidity of the decision to appoint him in the first place. Parliament would have business here if he was being dismissed, but he is not being dismissed. That lies at the core of his understanding," Grant said.

On a practical level, should Ntlemeza pitch up for work next week, it's likely he won't get close to his office, said Grant. Ntlemeza's passwords will likely be changed and his access would have been revoked, Grant said.

Legally, the police would be within their rights to approach the court because Ntlemeza would be in contempt of court, which is a criminal offence, he said.

Ntlemeza also cannot argue that he is allowed to operate in his post pending the outcome of an appeal. To do so, he'd have to approach the court on an urgent basis and the previous order, that his appointment was invalid, would have to be suspended.

All of this would have to take place this week, if he intends to return to work next Monday.

His prospects on appeal, Grant said, were slim.