Durban – The drawn-out legal battle waged by the Helen Suzman Foundation to shield the Independent Police Investigative Directorate (Ipid) from “political interference” will again play out in the Supreme Court of Appeals (SCA) in Bloemfontein on Friday.
The foundation has filed a 38-page heads of argument seeking to set aside a court order agreed upon by Police Minister Bheki Cele and former Ipid head Robert McBride in February 2019.
McBride, who now heads the foreign intelligence-gathering unit of South Africa, agreed, on the eleventh hour, to abandon a court challenge to Cele’s powers to hire and fire the head of the directorate tasked with investigating violations by SAPS members and metro police officers across the country.
The agreement was reached on February 11, 2019, a day before the case was to be heard. It was made an order of the court by Judge Wendy Hughes of the North Gauteng High Court. This irked the foundation.
McBride felt compelled to act after Cele told him he was not going to renew his contract when it ended on February 28, 2019.
When challenged, Cele sought the intervention of the portfolio committee on police to rubber-stamp his decision.
In its heads of arguments, the foundation argued the decision should be set aside as such an order should not conclude the matter.
It said the issue wasn’t private, but involved legislation governing the independence of a corruption-fighting unit.
The foundation also stated even if Cele said he was guided by the committee, that still amounted to political interference as that committee was a political structure sometimes vulnerable to factions of political parties.
It challenged the validity of the Ipid Act which it argued allowed the Police Minister undue influence in the appointing and firing of the Ipid head.
“The High Court has now given judicial effect to the interpretation of section 6(3)(b) of the Ipid Act adopted by the parties, simply because it was agreed between the litigants.
“This is unconstitutional and amounts to a failure of judicial duty, as the Constitutional Court has already ruled.
“This agreed interpretation conflates the appointment of an Executive Director with the renewal of his/her tenure, does violence to the independence (and the perception of independence) of Ipid and is contrary to our courts' jurisprudence on renewals and the need for insulation from political and executive interference,” the foundation argued.
Dealing with the alleged unlawful approval by Judge Hughes which it wants to be set aside, the foundation argued Cele’s decision was not declared unlawful as sought by McBride and Ipid, but was rather judicially endorsed as a preliminary decision to be confirmed or rejected by the portfolio committee on police.
“This patently erodes the independence of the institution of Ipid, however. If the minister's recommendation is to carry any weight at all, or is the prerequisite for a consideration on renewal, then it creates the possibility that an incumbent executive director who wished to have his or her term renewed would seek to curry the favour of the minister.
“It allows a single political actor to wield influence over the tenure of the head of a critical, independent constitutional institution.
“Even if this possibility does not arise in practise, the mere possibility itself gives rise to the perception of diminished independence.“
Cele and Ipid are yet to indicate to Independent Media whether they would be in court to oppose the case or not.
Political Bureau