Johannesburg - Robert McBride has launched a withering attack on Police Minister Nathi Nhleko in a war that has not only pitted comrade against comrade but may also pose a major test to the constitution.
McBride, who is head of the Independent Police Investigations Directorate (Ipid), pulled no punches on Friday as he resisted Nhleko’s attempts to suspend him.
In an unprecedented attack, McBride accused Nhleko of, among other things:
* Contravening the constitution.
* Ulterior and improper motives as well as bad faith.
* Threatening Ipid’s independence
* Irrational and unreasonable decisions.
* Blatant abuse of power.
* Undermining public trust in the criminal justice system.
“I am steadfast in my resolve to protect Ipid’s integrity and independence from political interference,” McBride said in papers submitted to the North Gauteng High Court on Friday.
“It is important for Ipid to be seen not to buckle under political pressure when, in executing its constitutional mandate, it makes findings and recommendations that are not aligned with the political views of the responsible minister.”
At the heart of the dispute are reports on the role of Hawks head Anwar Dramat in the illegal removal from South Africa of Zimbabweans suspected of having committed crimes in their home country.
On Saturday, a constitutional law expert, Shadrack Gutto, seemed to agree with McBride.
He said the head of Ipid was appointed through Parliamentary processes. Therefore, any suspension or dismissal of the Ipid chief ought to go through the Parliament.
“The independence of Ipid is extremely important,” Gutto said.
However, the law currently allows the minister to act against the Ipid chief.
The act says the minister may, remove the executive director from office on account of misconduct, ill health or inability to perform the duties of that office effectively
McBride has pulled no punches in his court application to stop Nhleko from suspending him, saying his decision was “vitiated by ulterior purpose or improper motive and bad faith”.
This week, Nhleko wrote a letter to McBride asking him to make representations explaining why he should not be suspended.
McBride launched an application for an urgent interdict to stop Nhleko from suspending him.
Nhleko accused McBride of misconduct in relation to Ipid’s report on the illegal renditions of the Zimbabweans.
The preliminary report recommended that Hawks boss Dramat and Gauteng head Shadrack Sibiya be charged with kidnapping and defeating the ends of justice.
McBride released the final investigating report that exonerated Dramat and Sibiya.
Nhleko appointed Werksmans Attorneys to investigate why there were two conflicting reports.
The rendition saga has led to the recent spate of suspensions in the Hawks.
Several members of the Hawks, including Dramat and Sibiya, were suspended for their alleged roles in the decision, but their suspensions have been declared unlawful by the high court. Dramat is on extended leave while his lawyers negotiate his exit strategy.
McBride said he was willing to engage with Nhleko, but warned that “I cannot stand idly while the minister, without any consultation or permission, undermines my leadership of Ipid and interferes with its operations and investigations.”
McBride said Nhleko’s decision was irrational and unreasonable.
He said this was evident from his spurious allegations of misconduct “on my part, which were detailed as justifications in the suspension notice”.
One of the reasons given was that McBride had refused to grant permission for the Ipid investigating officer, Innocent Khuba – who had been dealing with the rendition probe – to be interviewed by the law firm.
In his founding affidavit, McBride said: “I did so because I do not accept the minister’s commissioned investigation to be lawful.”
McBride said the investigation by Werksmans was undermining the independence and integrity of Ipid, especially since the National Prosecuting Authority “has not yet taken a decision on whether to prosecute any individuals implicated by Ipid’s report”.
He said the process was continuing and Nhleko was “interfering herewith by instructing Werksmans to conduct an investigation which falls squarely within the ambit of Ipid’s responsibilities”.
He and Ipid officials regarded Werksmans investigation as a sanction for no legitimate reason and as affecting the watchdog’s ability to perform its functions independently and without fear.
Political analyst Somadoda Fikeni said it was “legitimate” for Nhleko to commission an investigation if he felt there were flaws in the report. If he could not demonstrate that there was something fundamentally wrong with it, this would amount to wasteful expenditure.
McBride wants the court to review and set aside the Nhleko’s decision to suspend him.
The decision was unlawful and unconstitutional as he did not have power to suspend the Ipid’s head. This would also contravene Ipid’s independence enshrined in Section 206 (6) of the constitution. McBride said even if Nhleko had such powers, he had exercised them unlawfully by creating a reasonable perception that the police watchdog’s independence was under threat.
The intention to suspend him “is a clear stratagem to undermine or suppress the Ipid investigation report which does not implicate Dramat and Sibiya”.
The disciplinary hearing against Sibiya and Leslie Cowboy Maluleke was postponed to April 20 when they appeared before the commission of Friday. The director of Public Prosecutions for North Gauteng Sibongile Mzinyathi said it will be decided this week whether to prosecute. “There are a few things that we still need to follow up.”
The Sunday Independent