Judgment due in Sibiya bid

2015-02-17 05:00
(File: Hawks)

(File: Hawks)

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Pretoria - Judgment in an urgent application by Gauteng Hawks boss Major General Shadrack Sibiya to have his suspension overturned will be delivered by the North Gauteng High Court in Pretoria on Friday.

Judge Elias Matojane said on Monday that he hoped to deliver judgment in the application early on Friday morning.

Sibiya wants the court to declare his suspension on 20 January illegal, unconstitutional and invalid.

He wants declared invalid the appointment of Major General Elias Dlamini to replace him as acting Gauteng boss of the Directorate for Priority Crime Investigations (DPCI).

In court papers, Sibiya accused the acting national head of the Hawks, Major General Berning Ntlemeza, of being motivated by the desire to take revenge on behalf of his "ally", suspended police crime intelligence head Lieutenant General Richard Mdluli.

Ntlemeza suspended Sibiya pending an investigation into his alleged role in the illegal rendition of Zimbabweans to that country's police in 2010.

Sibiya claimed in an affidavit that the Independent Police Investigative Directorate (IPID) had exonerated him from any involvement in the rendition and he did not know why he was suspended.

"My alleged involvement in the 'illegal rendition' is contrived and my suspension is a result of a conspiracy to discredit and remove me," he said.

Sibiya's counsel Naomi Manaka heavily relied on Judge Bill Prinsloo's judgment in an application brought by the Helen Suzman Foundation about the suspension of national Hawks boss Lieutenant General Anwa Dramat.

Prinsloo ruled that Dramat's suspension and Ntlemeza's appointment as acting head were invalid.

Dramat has not returned to work, despite the ruling, and is presently on voluntary leave.

Manaka said if Dramat's suspension never happened, the appointment of Ntlemeza also never happened and his decision to suspend Sibiya was unlawful.

She argued that Ntlemeza had no legal power to suspend Sibiya, and that the decision should have been made by Police Minister Nkosinathi Nhleko in consultation with the national head of the Hawks.

She said Ntlemeza's argument that the police regulations authorised him to suspend Sibiya had nothing to do with the DPCI, which was formed only after the regulation on which Ntlemeza relied came into effect.

Motive for suspension

Manaka argued there was only one motive for her client's suspension, and that was because he was instrumental in investigating Mdluli.

"An element of bias has been shown. Whatever the purpose is, the decision [to suspend Sibiya] is not rationally connected to the purpose for which it was intended," she argued.

Ntlemeza, who opposed the application, said in an affidavit he had no ulterior motive against Sibiya, who had not worked for him before.

He said Sibiya had not substantiated his claim of a conspiracy, but relied on innuendoes and rumours.

"I deny in the strongest terms the insinuation by the applicant of any ulterior motive or conspiracy to be rid of him. I have absolutely no such motive," he said.

Ntlemeza denied that Sibiya had been exonerated of any wrongdoing and said the allegations and witness statements placed him at the centre of, and as giving direct instructions for, the illegal renditions.

He said the IPID report had been referred to the national director of public prosecutions for further investigation.

"I am not, for the moment, saying he's guilty of these allegations. However, due to the seriousness of the allegations and the fact that the applicant is implicated in them, the seniority of the position [he] holds warrant that [he] cannot be expected to remain in office whilst the allegations are being investigated," Ntlemeza said.

‘Disappearing’ witnesses

Ntlemeza said he had been advised that some potential witnesses had "disappeared or [been] killed" and he said he feared the investigation might be interfered with.

William Mokhari, for Ntlemeza, argued that Sibiya's allegations of a conspiracy were far-fetched and could not be proved.

He said the suspension concerned an issue between an employer and an employee, and that Sibiya should have approached the Labour Court.

Mokhari argued that Sibiya was a provincial head, and not the highest-ranking official in the DPCI. This meant his immediate superior, Ntlemeza, had the power to suspend him in terms of police regulations.

He said Sibiya had wrongly conflated his suspension with a removal from office, which were two distinct processes.

Read more on:    hawks  |  anwa dramat  |  shadrack sibiya  |  pretoria

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