On Thursday the matter of the contract of Robert McBride, executive director of the Independent Police Investigative Directorate (IPID), will come to a head: The portfolio committee on police will finalise its report on whether McBride’s contract should be renewed, after which the Gauteng High Court in Pretoria will hear the case.
On Wednesday, the committee drafted its observations and findings, and proceedings followed the partisan pattern of the previous two days.
The ANC emphasised several allegations against McBride: The fact that the Public Protector is investigating him; a finding by the Public Service Commission (PSC) that McBride didn’t abide by IPID policy and public service regulations when he withdrew security clearance of vetting officer Luanda Saohatse and moved her to another department; and the apparent breakdown in trust between him and Police Minister Bheki Cele.
The Anti-Gang Unit is on a roll since its deployment in the Western Cape, Police Minister Bheki Cele claimed on Thursday.
The DA pointed out that apart from the PSC there are allegations, but not any findings, against McBride and that IPID’s effectiveness improved under McBride; it also emphasised the importance of IPID’s independence.
The committee sent two letters to McBride requesting his comment on why he applied for the posts of head of the Hawks and head of Crime Intelligence, and the PSC finding. In his reply, McBride said his applications for the posts were “well known to the minister and was also the subject of media coverage at the time”.
“I believed, and still believe, that I was well placed to fulfil those positions,” he wrote.
“Great strides had been made at IPID under my watch.”
He said at the time he didn’t believe that IPID’s independence would again be threatened by a minister.
“Regrettably, this was not correct,” McBride wrote.
He said Cele taking a decision on his removal was an instance of interference.
Due to his position at IPID, he was acutely aware of the malfeasance at both the Hawks and Crime Intelligence, said McBride.
“In short, my motivation for applying to the aforesaid positions was to serve my country and to undo some of the damage that was done to and through these institutions.”
He said his motivation to apply for those positions was thus aligned with his “willingness” to stay on as IPID’s executive director.
On the matter of the PSC finding, he said he first heard of it when the committee furnished him with the letter from the PSC.
“The initial decision to withdraw Ms Saohatse’s security clearance was made after the IPID’s integrity committee deliberated on the matter and recommended that the security clearance be withdrawn,” McBride wrote.
He said due process was followed after Saohatse lodged a grievance, and while he didn’t agree with the appeal panel’s reasons for upholding Saohatse’s appeal, IPID accepted it.
He said IPID has since instituted disciplinary proceedings against Saohatse for “the same type of conduct” that led to them withdrawing her security clearance in the first place.
McBride included a forensic report which suggests that Saohatse forwarded confidential information to persons outside IPID.
ANC MPs unimpressed
His submissions did little to sway ANC MPs.
ANC MP Leonard Ramatlakane said: “If a person wants to leave, it means his heart is somewhere else.”
On the PSC matter, DA MP Dianne Kohler Barnard said it was not a “one-person decision” to remove Saohatse, as previously implied, and the PSC didn’t prescribe any sanction against McBride.
“Tarnishing someone’s name as a loose cannon, in this case, is totally unwarranted,” Kohler Barnard said.
Ramatlakane described Kohler Barnard’s defence of McBride as “unbelievable”.
ANC MP Angelina Molebatsi said she sometimes forgets that Kohler Barnard is an MP.
“I think she’s Mr McBride’s lawyer,” she said.
“For heaven’s sake, we’re dealing with facts here.”
Kohler Barnard responded: “I have no truck with Mr McBride. I’m not his lawyer.”
She said that every time she lays facts on the table, she is attacked by the ANC, adding: “I have had enough.”
That wasn’t Kohler Barnard’s last skirmish with ANC MPs.
Much later in the day, she suggested that the committee include IPID’s achievements – a growth in arrests and referrals to the National Prosecuting Authority as indicated in IPID’s annual reports – in its findings.
“The least we can do is show the tremendous amount of work done rather than chuck them out because some minister didn’t sign a performance assessment,” she said.
ANC MPs shot the idea down, saying Kohler Barnard didn’t raise the matter earlier when they dealt with observations.
A few minutes later, Kohler Barnard stood up with her briefcase and announced she would be leaving as there was no point for her to be there. ANC MPs said something inaudible to Kohler Barnard, who responded, very audibly: “You’re a disgrace.”
She left while committee chairperson Francois Beukman calmly said: “Colleagues, let’s keep it civil.”
The matter landed in the committee’s lap after a settlement agreement was reached two weeks ago in legal proceedings McBride had instituted against Cele, after Cele wrote to him to say that his contract would not be renewed.
The committee was also party to court proceedings.
In a draft order handed to the North Gauteng High Court in Pretoria, the parties agreed that the decision Cele had taken to not renew McBride’s term was a preliminary one that still needed to be confirmed or rejected by the committee.
Helen Suzman Foundation lodges appeal
Meanwhile, the Helen Suzman Foundation (HSF), which joined the initial court proceedings as an amicus curiae (friend of the court), indicated that it has lodged a conditional application for leave to appeal with the North Gauteng High Court in Pretoria as well as an application with the Constitutional Court to appeal the High Court order.
“The committee has taken a view, after legal advice, to proceed with the processes it had initiated as it is exercising its powers in terms of Section 6(3) of the IPID Act and not the settlement agreement,” Beukman said in a statement.
“The settlement agreement simply regulated the timing of any decision to be taken in terms of Section 6(3). The settlement agreement did not give the committee the power to decide on the renewal of the contract. That power is sourced in the legislation and rules of the national assembly.
“Furthermore, the committee is of the view that its functions as set out in Section 6 of the IPID Act remain and do not seem to be disputed by the HSF.”
In a statement, HSF said the IPID Act does not indicate who is responsible to make a decision on whether the IPID executive director’s contract should be renewed.
“However, the Constitutional Court has on numerous occasions held that a political actor is not permitted to make a decision on the renewal of a term of office of an executive of an independent institution, such as IPID, as this is incompatible with the requirements of adequate independence.
A decision by a political actor on such a renewal (or non-renewal) is therefore constitutionally invalid and a court order which gives effect to a process requiring such a decision is unconstitutional,” reads the HSF’s statement.[source: News24]