The untrammelled powers of the police minister to get rid of the head of the Independent Police Investigative Directorate (IPID) was unconstitutional and should be subjected to Parliamentary scrutiny, the High Court in Pretoria has heard.
Police Minister Nathi Nhleko suspended Robert McBride in March, just over a year after appointing him as head of IPID and ordered that he must face charges of gross misconduct at a disciplinary hearing.
He was accused of altering an IPID report that implicated former Hawks boss Anwa Dramat and Gauteng Hawks boss Shadrack Sibiya in the illegal rendition of Zimbabwean nationals wanted for murdering a policeman in Zimbabwe.
McBride wants the court to declare the sections of the IPID Act which gives the minister the power to suspend, discipline and remove him, unconstitutional.
He also wants the court to set aside Nhleko’s decision to suspend and subject him to disciplinary proceedings declared unlawful.
McBride believes the Minister’s powers to act against him undermines the independence of IPID, but withdrew his allegations that the minister had acted in bad faith and did not have the power to suspend or remove him.
He earlier obtained an interdict in the labour court to stop his disciplinary hearing from continuing, pending the outcome of his constitutional challenge.
Judge Fayeeza Kathree-Setiloane granted leave to the Helen Suzman Foundation and the Council for the Advancement of the South African Constitution to present legal argument as friends of the court.
Both organisations argued in favour of provisions of the IPID Act being struck down as unconstitutional.
‘It affords Parliament no role in the process’
McBride’s advocate Steven Budlender, SC argued that the Constitution expressly provided for IPID’s independence, but that the act itself did not contain sufficient safeguards to ensure that the directorate’s executive director and IPID itself could act independently.
“It allows a cabinet member – the minister of police – to suspend, discipline and remove the executive director of IPID from office. It affords Parliament no role in this process whatsoever.
“The provisions of the IPID Act, read with the Public Service Act, are plainly not consistent with the requirements of independence as they have been articulated by the Constitutional Court,” he said.
He said it was clear that the IPID provisions were even less protective of independence than the Directorate for Priority Crimes Investigation (Hawks) provisions which were struck down by the Constitutional Court.
The provisions were also not consistent with the level of independence afforded to police complaint directorates in foreign jurisdictions.
The fact that the minister and the minister alone could fire the head of IPID was the antithesis of independence, he added.
Budlender said even if the act survived the constitutional attack, then the manner in which it was applied was unconstitutional as it created an impression of political interference with IPID’s independence.
“McBride does not seek to be exempted from a disciplinary hearing. He accepts the allegations against him have to be dealt with, but they will have to be dealt with in a constitutional manner,” he submitted.
“The test is not if the minister has in fact interfered in IPID or if he has acted in bad faith. The provisions are such that they do not instil confidence in IPID because they suggest that the head of IPID effectively serves at the pleasure of the minister.
“Public confidence is an important component of its independence,” he said.
“McBride does not contend that the Minister should not know what’s going on and should be kept in the dark. He should be kept in the loop, but while IPID’s independence is protected.
“It is inexplicable why the decision was taken not to have Parliamentary involvement with regard to the removal of the head of IPID,” he said.
Cloud of uncertainty
Budlender argued that Parliament should be given a year to rectify the legislation, but that until then the Police Act should apply the suspension and removal of the head of IPID and that Parliamentary oversight over the process should be read into the act.
William Mokhari SC, for the police minister, argued that McBride was trying to interfere with the minister’s oversight role over IPID.
He argued that McBride’s motivation was getting his job back and that what he was seeking in effect meant that he would evade scrutiny for his actions, which gave rise to the minister’s decision to suspend him.
There was a prima facie case against McBride of gross misconduct and the proposed interim remedy would put a halt to manifestly necessary disciplinary proceedings already under way.
It would leave a cloud of uncertainty about the proper consequences McBride must face and would be detrimental for IPID’s independence and the administration of justice.
The minister’s decision was made in accordance with the law and aimed at protecting the integrity and independence of IPID, he submitted.
Mokhari said there was a huge difference between the Hawks, which could investigate any of South Africa’s millions of inhabitants, and IPID, which could only investigate the police.
He argued that the possibility for abuse by the minister was not enough reason to strike down the act as unconstitutional.
The application will continue on Friday. News24