Johannesburg - A Joburg Labour Court judge on Friday tore into Police Minister Nathi Nhleko’s arguments in his battle to institute disciplinary action against suspended Independent Police Investigative Directorate (Ipid) boss Robert McBride.
McBride won an interim order preventing Nhleko from instituting disciplinary proceeding against him pending the final outcome of a court challenge on the minister’s powers to unilaterally suspend, discipline and remove him.
Judge Annelie Basson granted the order stating that “exceptional circumstances” existed for the court to intervene in an incomplete disciplinary processes after Nhleko’s lawyers had raised this.
She cited a previous Labour Appeal Court ruling which, she said, made it clear that “this court has the power to intervene in incomplete disciplinary proceedings to prevent a serious injustice”.
Judge Basson said McBride sought to interdict a disciplinary inquiry on the basis that there was a pending constitutional challenge against the minister’s statutory powers to suspend and discipline him.
“This constitutes, in my view, exceptional circumstances,” she said. “What makes this matter further exceptional is the allegation that the present disciplinary inquiry will infringe the constitutional independence of Ipid and the applicant’s right to a lawful disciplinary enquiry. This case is therefore an exceptional one and I am of the view that the failure to intervene would lead to a grave injustice.”
McBride faces charges of misconduct relating to his involvement in the investigation of reports on the rendition of Zimbawean suspects in 2010.
He is accused of ordering a report implicating Former Hawks boss Anwa Dramat and Gauteng Hawks boss Shadrack Sibiya to be altered to clear them.
The judge said McBride as head of a corruption-fighting body – required under the Constitution to be independent – being subjected to a disciplinary inquiry that is “in all likelihood unconstitutional, constitutes a violation of that independence”.
She said the high court had already found that McBride’s challenge of the minister’s powers has, “reasonable prospects of success”.
“The high court thus has already found that the applicant has a prima facie right to a disciplinary instituted by Parliament and not by the minister,” she explained.
“I have perused the judgment… and I am in agreement with his view.”
Nhleko’s lawyers had also argued that the court should not grant an order which has the effect of suspending the operation of legislation but the judge disagreed.
Judge Basson said should the disciplinary proceedings against McBride be declared invalid he would face “extraordinary prospect” of duplicate proceedings which in turn would have severe financial consequences for him.
She said should the present hearing be allowed to continue, all parties involved will have incurred wasted costs that may never be recovered.
McBride submitted to the court that although he had obtained financial assistance to defend himself in the current hearing, he did not have sufficient funds to defend himself in a second disciplinary hearing in the event the current one was set aside.
Judge Basson said she had considered the prejudice that McBride contented he would suffer if the order was not granted and weighed that against the prejudice that may be suffered by the minister by not being able to finalise the disciplinary proceedings.
The judge ordered the minister to pay the costs of the application including the costs of McBride’s two counsel.
Saturday Star