McBride hearing postponed over chairperson's authority

2015-07-06 14:41
Robert McBride (Jenni Evans, News24)

Robert McBride (Jenni Evans, News24)

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Pretoria - Suspended Independent Investigative Directorate (Ipid) head Robert McBride has spent his birthday on Monday listening to a challenge over the validity of the chairperson appointed to hear his disciplinary case.

Surprised that News24 had noticed an SA History online item announcing the birthday of one of the country's most controversial figures, born in Durban in 1963, the 52-year-old accepted congratulations bashfully.

McBride, the executive director of Ipid, was suspended on March 24 2015 and later charged with eight counts of misconduct.

This was while conducting investigations into allegations that suspended Gauteng Hawks head Shadrack Sibiya and now-resigned national Hawks head Anwa Dramat knew about the alleged illegal arrest and deportation to Zimbabwe of a group of men wanted there for the murder of a policeman.

He has already made one unsuccessful court challenge to the validity of his suspension.

Powers to institute proceedings

In a sombre room at the Hawks head office in Pretoria, McBride's counsel Timothy Bruinders applied for a stay of his disciplinary proceedings on two grounds.

The first is that the constitutionality and lawfulness of Police Minister Nathi Nhleko's powers to institute the proceedings are subject to a constitutional challenge on August 26; and the second is that Nhleko's appointment of chairperson advocate Phillip Mokoena SC does not comply with the requirements of the Disciplinary Code and Procedures of the Public Service as adopted by the Public Service Co-ordinating Bargaining Council.

Bruinders submitted that Cabinet should have instituted the proceedings, not the minister alone, and that the chairperson himself should have been appointed by Cabinet.

''The chairman must be appointed by Cabinet, not the Minister," said Bruinders of Mokoena, who is a senior counsel at the Johannesburg Bar and in private practice in Sandton.

But Tembeka Ngcukaitobi, for the Minister of Police, said the charges that McBride faces indicate the seriousness of the matter and the public wants it finalised.

He said a disciplinary hearing had no control over how a high court, the Supreme Court of Appeal or the Constitutional Court would find, adding that precedent shows that people cannot be ''immunised'' against disciplinary proceedings because there is a parallel court application.

Controversial figure

The application McBride is making relates to the constitutionality of the disciplinary proceedings and whether Nhleko could institute them without going through Cabinet. The constitutional issue would first have to be heard in a high court.

Ngcukaitobi said Nhleko is a member of the Cabinet, that Cabinet knew about McBride's disciplinary proceedings and the appointment of Mokoena and it had not raised objections to the disciplinary proceedings.

After hearing a volley of legal precedents over whether it is possible to hear a disciplinary hearing parallel to a court case, Mokoena concluded by saying that it was not possible to make an instant decision on such an important matter.

Mokoena said he hoped to provide an answer as to whether he should remain chairperson or not, by next Tuesday, freeing McBride to enjoy what was left of his 52nd birthday.

Controversy has dogged McBride since he admitted planting a bomb at Magoo's Bar in Durban at the height of apartheid as an operative of the armed wing of the ANC. He said at the time it was to target military personnel who liked to unwind there.

He was also in the department of foreign affairs and spent time in a jail in Mozambique after being arrested for being in possession of guns. He said at the time he was on an undercover mission.

Before becoming Ipid head McBride headed the Metro Police in Ekurhuleni.

Read more on:    police  |  ipid  |  nathi nhleko  |  robert mcbride  |  pretoria

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