Former acting pollice commissioner Khomotso Phahlane. File picture: Thobile Mathonsi/ANA

Pretoria - In a groundbreaking judgment, the Gauteng High Court in Pretoria on Thursday ordered that no member of the police may oversee or conduct an investigation in a matter concerning a member of the Independent Police Investigative Directorate (Ipid) in which that member of the SAPS has a personal, financial or any other interest.

Judge Neil Tuchten further ruled that, if during an investigation, it appears to a member of SAPS that he or she may have a personal interest in the Ipid case under investigation, the member had to immediately fully disclose this to the National Commissioner of Police.  That member must also then immediately withdraw from the case.

Ipid turned to the court earlier this month regarding the burning issue of whether members of the South African Police Service are entitled to investigate Ipid members and which members of the SAPS are precluded from doing so due to a conflict of interest.

The issue came to the fore following the investigation into former acting police chief Khomotso Phahlane for corruption and fraud charges, which were meanwhile provisionally withdrawn against him and his wife Beauty.

It concerned the construction costs to his private home. It is alleged that construction costs of more than R1-million were paid from the accounts of two SAPS service providers who had benefited from tenders awarded to them.

As part of the investigation, Ipid obtained and executed a search warrant at Phahlane’s house. A team of SAPS members stationed in the North West Province then began an investigation into the manner in which Ipid’s investigation of Phahlane had been conducted.

Ipid’s case is that the SAPS team have conflicts of interest because each of them is the subject of an investigation into alleged criminal conduct being conducted by the same Ipid investigators.

Phahlane meanwhile undertook not to involve himself in the investigation or play any role in overseeing it. This undertaking was made an order of court.

Judge Tuchten remarked that the relationship between Ipid and SAPS has become fraught, to say the least. “Accusations of serious criminal misconduct have been flung by both sides. Inevitably there will be a certain tension between these two organs, but the hostility demonstrated by the (court) papers appear to be so bad that I fear that a certain measure of dysfunctionality has intruded into the relationship between the two services,” the judge said.

He made it clear that he did not take sides and made no findings of guilt or innocence.

The judge said his judgment and order is merely designed to settle the law on a point which was in issue between those involved.

The very serious allegations - on both sides - deserve to be fairly and thoroughly investigated and dalth with according to law. Until the law has spoken, nobody is entitled to cry victory.”

Judge Tuchten meanwhile said his order that no SAPS member may investigate an Ipid member if there is a conflict of interest, will remain in force until there is national legislation which deals with this subject.

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