Ten months after Police Minister Nathi Nhleko was instructed to institute disciplinary action against national police commissioner General Riah Phiyega, his office is staying mum on why such action has not been taken.

The Independent Police Investigative Directorate (Ipid) and the National Prosecuting Authority (NPA), which investigated Phiyega for defeating the ends of justice, both recommended Nhleko institute disciplinary action against the commissioner.

Nhleko’s spokesperson, Musa Zondi, told City Press there was an omission in the SAPS Act in terms of what the police minister could or could not do, because the national commissioner was appointed by the President.

“When the minister learnt of the recommendation, he requested a legal opinion and forwarded same to the presidency. The SAPS Act is not clear on this, hence the opinion was sent to the presidency,” said Zondi.

At the time of publishing, presidency spokesperson Harold Maloka had not responded to questions about what President Jacob Zuma has done in this regard.

City Press has seen the NPA’s record of the decision, which the DA received last week through the Promotion of Access to Information Act.

Ipid told DA MP Dianne Kohler Barnard the matter had been referred to Nhleko to consider disciplinary action against Phiyega in terms of its recommendations and those of the NPA.

Ipid did not give Kohler Barnard its own findings, saying its report contained evidence that may be used during Phiyega’s hearing.

However, it gave the DA MP the NPA’s report, which deals with the recommendations of both entities.

Phiyega alerted Western Cape police commissioner Lieutenant General Arno Lamoer in a telephone conversation that he was the subject of a Hawks criminal investigation, and police were monitoring his phone.

The allegation is that this adversely affected the Hawks investigation.

The NPA report reveals that, in her warning statement, Phiyega denied she intended to defeat the ends of justice and she was merely responding to Lamoer’s enquiry about a parliamentary question.

Ipid concluded that Phiyega had not intended to frustrate the investigation against Lamoer, and recommended she not be prosecuted, because there was no prima facie case.

But in its record of decision, the NPA found there could be no doubt Phiyega was obliged to retain the confidentiality of the intercepted information.

The NPA found the disclosure was a dereliction of Phiyega’s duty to respect the confidence of the monitors, investigators and provincial and national heads of the directorate for priority crime investigation were entitled to expect of her.

“Phiyega offers no explanation whatsoever in her statement for informing Lamoer that she was shown or given a telephone recording of Lamoer’s discussions,” reads the NPA report.

It states that, given the gravity of revealing such legislatively confidential information, the failure to explain needed to count against her.

Like Ipid, the NPA concluded that a lack of intention to defeat the ends of justice meant that criminal prosecution would therefore not reasonably succeed.

The NPA found: “Although failure to properly perform police duties is not criminal, the dereliction of duty on the part of the national commissioner of police is sufficiently well founded on the evidence, and serious enough to merit recommending departmental disciplinary steps.”

Kohler Barnard said it was “scandalous” that almost 10 months had elapsed and an inquiry had not been instituted.

“Ms Phiyega is clearly not fit for office and should have been fired years ago,” she said.

Kohler Barnard said the DA had always contended it would be bizarre if Lamoer were prosecuted but not Phiyega, because defeating the ends of justice was usually done in tandem.

“Nonetheless, that is exactly what has happened. This, coupled with the laundry list of failings of the SAPS under her watch, should see her discharged once and for all. Never mind an inquiry into her fitness for office, because her track record is evidence enough of her unsuitability to be South Africa’s top cop,” she said.

Phiyega’s spokesperson, Solly Makgale, referred questions to Nhleko. News24