Pretoria - Police Minister Nathi Nhleko should not have unilateral powers to suspend, discipline and remove the executive director of the Independent Police Investigative Directorate (Ipid).
These powers were open to abuse, which was detrimental to the independence and effective functioning of Ipid.
This was the argument advanced on behalf of suspended Ipid head Robert McBride, who is asking the high court in Pretoria to declare certain sections of the Ipid Act unconstitutional. He is also asking that his suspension be set aside.
The application mainly concerns the independence of the Ipid, a body established to investigate alleged misconduct, including corruption, committed by police.
Steven Budlender, arguing on behalf of McBride, on Thursday told Judge Fayeeza Kathree-Setiloane that the Constitution required that a body such as Ipid had to be independent. The Ipid Act did not contain sufficient safeguards to ensure that it, as well as its head, 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.”
Budlender added that the provisions of the Ipid Act, read with the Public Service Act, are not consistent with the requirements of independence as articulated by the Constitutional Court. That court earlier secured the independence of the Directorate for Priority Crimes Investigation (Hawks). Budlender said Ipid was entitled to the same independence.
The minister suspended McBride from office in March this year and instituted a disciplinary inquiry against him on charges of misconduct. This followed his role in the Ipid investigation about the role of former Hawks head Anwa Dramat and provincial head Shadrack Sibiya in the unlawful 2010 rendition of Zimbabwean nationals.
The minister, on the other hand, contended that McBride was simply trying to get out of his disciplinary hearing. William Mokhari SC said the minister was duty bound to suspend McBride to protect the integrity of Ipid.
He said the Ipid Act itself creates constitutionally satisfactory protections for the independence of Ipid.
According to Mokhari, Ipid’s independence under the Constitution is not absolute, as it is subject to the political responsibility of the minister.
He said Ipid had a duty of accountability.
The power of the minister to remove the head of Ipid doesn’t interfere with the independence of this body as an institution, nor does it interfere with the independence of its head, he said.
Mokhari argued that the minister was directly accountable to Parliament and didn’t have untrammelled powers to remove the Ipid head from office.
Mokhari said if McBride’s application succeeded, it would halt the disciplinary proceedings against him, which were already under way.
“It would leave a cloud of uncertainty as to the consequences he must face and it will negatively affect the independence of Ipid.
“It would plainly not be in the interests of Ipid or the administration of justice,” he said.
McBride, who attended Thursday’s court proceedings, seemed in good spirits as he joked with the media.
Pretoria News