Minister had no power to suspend McBride - ConCourt hears

17 May 2016

Johannesburg - The decision by the police minister to suspend Independent Police Investigate Directorate (Ipid) executive director Robert McBride must be declared invalid, the Constitutional Court heard on Tuesday.

McBride also wants the Constitutional Court to give Parliament 30 days to decide whether it wants to institute a disciplinary hearing against him.

If the order is handed down by the Constitutional Court, and if Parliament does not make a decision within 30 days, then he will be back in his job.

The highest court of the land was hearing complicated technical arguments around his suspension on Tuesday morning, which has had a ripple effect into the upper echelons of South Africa's political landscape, with accusations flying around that his suspension was linked to attempts to silence detractors of President Jacob Zuma.

McBride is arguing that the police minister did not have the power to suspend him - and the minister's lawyers agree with that, but still want the decision to stand.

Essentially, Police Minister Nathi Nhleko conceded that he had no power to suspend or institute disciplinary proceedings against McBride - but he wants the decision he made to still be in effect.

Provisions unconstitutional

The minister wants Parliament to directly continue with the disciplinary proceedings against McBride, while McBride wants Parliament to decide whether it wants to institute disciplinary proceedings against him.

Steven Budlender, for McBride, told the Constitutional Court that Nhleko conceded that the provisions in law, which allowed him to suspend McBride, were unconstitutional.

"The minister had no power to suspend and no power to institute disciplinary proceedings."

He said, however, that while Nhleko conceded this, the minister still resisted an order to set his decision to suspend McBride aside.

"What he seeks is an order that ties the hands of National Assembly and Parliament," Budlender said.

He said McBride was asking the court to confirm a previous order by the High Court in Pretoria which allowed Nhleko to suspend McBride unilaterally were unconstitutional.

Implicated in renditions

McBride was suspended in March last year on allegations that he had changed an Ipid report implicating then Hawks head Anwa Dramat, in order to protect him.

The report was about the alleged illegal rendition of five Zimbabweans that Dramat, axed Gauteng Hawks boss Major General Shadrack Sibiya and Captain Lesley Maluleke were allegedly involved in.

A first report allegedly implicated them in the renditions, however a later report cleared them.

Dramat resigned in April last year after much back and forth between court, his office, and being on leave, following his suspension in December 2014.

Sibiya was fired in September last year after being found guilty of gross misconduct by a disciplinary inquiry into the renditions.

William Mokhari, and later his junior Tembeka Ngcukaitobi, for Nhleko, both admitted before the Constitutional Court on Tuesday that the relevant legislation was unconstitutional, but that the decision to suspend McBride, which was done via that legislation, should not be set aside.

"The court would have the authority to grant the order that we seek. The question is whether it is just and equitable [and]... whether or not the minister acted in good faith [to suspend McBride] based on the information available to him at the time," Ngcukaitobi said.

Sars rogue unit

He argued that leaving 30 days for Parliament to decide could eventually lead to the 30-day suspension lapsing, and the danger of McBride returning to work before Parliament makes a decision, especially if there were no mechanisms in Parliament to set up a committee to deal with the matter in time.

Following Dramat's exit in March last year Major-General Mthandazo Berning Ntlemeza was appointed to head up the Hawks.

Under Ntlemeza, the Hawks sent Finance Minister Pravin Gordhan several questions over the SA Revenue Service's "rogue unit".

The Sunday Times reported at the weekend that the Hawks wanted Gordhan and eight others to be prosecuted for espionage, for spying on taxpayers during his time as SARS commissioner.

There were also reports that former Finance Minister Trevor Manuel and former SARS deputy commissioner Ivan Pillay also faced arrest, however both have denied any wrongdoing.

McBride is also currently facing charges of fraud and defeating the ends of justice over the Ipid report. His two co-accused are Ipid ID national investigations leader Matthews Sesoko and former Limpopo IPID head Innocent Khuba.

Judgment was reserved.

This article first appeared on News24, see here.