Johannesburg - The Constitutional Court has ruled that the legislation giving power to the Minister of Police to suspend or remove from office the executive director of the Independent Police Investigative Directorate (Ipid) is unconstitutional.
In May this year, Ipid’s director Robert Mcbride launched an application at the apex court to confirm an order of the High Court that declared certain provisions of the Ipid Act, Public Service Act and the Regulations for the Operation of the Police Investigative Directorate invalid.
McBride was suspended in March 2015 by Police Minister Nathi Nhleko after a controversial investigation by the directorate into top Hawks officers and the alleged illegal rendition of four Zimbabweans during an SAPS operation during 2010 and 2011.
While an initial report suggested that then Hawks bosses Lieutenant General Anwa Dramat and Major General Shadrack Sibiya be criminally charged with kidnapping, McBride later signed another report recommending no charges be instituted due to a lack of evidence. Nhleko then initiated disciplinary proceedings against McBride, prompting the Ipid head to launch a High Court application to declare the provisions empowering the minister to suspend him unconstitutional.
The High Court insisted that the independence of Ipid expressed in the Constitution was not protected by the provisions of the Ipid Act allowing the police minister to interfere with its executive management. It therefore ruled that the legislation was invalid because of their inconsistency with the Constitution.
The court also set aside the disciplinary action against McBride.
On Tuesday morning, the Constitutional Court was asked by McBride – and friends of the court, the Helen Suzman Foundation – to confirm the High Court’s decision.
In his application, McBride expressed the importance of Ipid’s independence. He believed that Ipid deserved the same amount of legal protection as the Hawks, another independent entity involved in fighting corruption.
In his response, Nhleko conceded that the legislation being declared invalid will strengthen the independence of Ipid, and did not oppose this aspect of the application. However, he contended that the decision to set aside the disciplinary proceedings against McBride was inconsistent with the doctrine of the separation of powers, and that it fails to clarify how Parliamentary intervention has its own place in potentially investigating the conduct of Ipid’s upper echelons.
On Tuesday morning, in a unanimous judgment read by Justice Christopher Nyaole Jafta, the court reinforced Ipid's autonomy by upholding the High Court's ruling.
The court held that the disputed provisions did undermine Ipid's independence, and were deemed unconstitutional. Justice Jafta said the minister's decision to discipline McBride would not be upheld.
The court ordered that the disciplinary process must be restarted with the necessary parliamentary oversight within the next 30 days, and the minister's decision to suspend McBride would remain only during that period.
The court said the National Assembly and Minister of Police will have to approach Parliament within the next 30 days if they wish to reinstitute an investigation into McBride's conduct.
The State was ordered to pay costs for the proceedings.
The Star