McBride loses bid to put disciplinary hearing on hold

2015-07-14 16:16

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Pretoria - Suspended Independent Police Investigative Directorate (Ipid) head Robert McBride will have to face the music at his disciplinary hearing.

This is after an application to have it put on hold as well as questioning the validity of the chairperson's appointment, was dismissed.

''We were informed [of this] in an email this morning,'' said McBride's attorney, Jac Marais, on Tuesday.

In the decision, chairperson Advocate Phillip Mokoena SC said it was ''fair, convenient and in the interest of justice'' not to stay the disciplinary inquiry.

McBride was suspended in March as the executive head of Ipid and on May 21 lodged an application to put his disciplinary hearing on hold until the outcome of his constitutional challenge, starting in the High Court in Pretoria, regarding the power of Police Minister Nathi Nhleko to suspend him.

If that was not successful, he also wanted the appointment of Mokoena by Nhleko to be declared invalid and unlawful, and for the hearing to be stayed pending the ''lawful'' appointment of a disciplinary chairperson.

McBride's counsel, Timothy Bruinders SC, had argued that Nhleko's appointment of the chairperson did not comply with the requirements of the Public Service Disciplinary Code which applies to all disciplinary proceedings.

According to Clause 7(3)(b) of the Code, the employer must either chair the disciplinary, or a chairperson must be designated by Cabinet or the Provincial Executive Committee, and not just the police minister.

McBride said that he was head of a national department and that, under the Code, the employer should either chair the disciplinary themselves or that the chairperson should be designated by Cabinet.

He submitted that there was no indication that Cabinet had approved the appointment of the chairperson to chair his disciplinary proceedings. 

He said Ipid was a body that was supposed to be constitutionally independent. As such, it was important that the appointment of the chairperson not be a tainted process, to ensure fairness and no bias, especially in instances where employer and employee had worked together, or in politically sensitive matters.

In May, Mokoena granted a postponement for the parties to prepare for the application for the stay. The application was heard early in June.

In his findings on the application for a stay, and whether he should be chairing the disciplinary, Mokoena said McBride would not be prejudiced in advancing his defences in front of an independent chairperson.

If the matter went to the Supreme Court of Appeal and the Constitutional Court, McBride would remain on suspension with full pay during that period.

Mokoena said the employer, the minister of police, had the right to remove the employee from his office and to discipline the employee on misconduct allegations.

''As a result, I find no factual or legal basis as to why the disciplinary proceedings against the employee should not proceed while he continues with his constitutional challenge."

He also found that Nhleko, as the employer, had the right to appoint an independent chairperson.

''Accordingly, on the abovementioned basis, the employee’s stay application is dismissed.''

The disciplinary hearing forms part of the wider fallout following a report in the Sunday Times that a group of Zimbabweans wanted for the murder of a policeman in that country were arrested, and then handed over to Zimbabwean police at the Beit Bridge border post without following procedure.

So far, Hawks boss Anwa Dramat has left office over the matter, and Gauteng Hawks boss Major-General Shadrack Sibiya was also put through a disciplinary after allegedly being seen at the arrest of some of the men.

Because it involves allegations of police misconduct, Ipid had to investigate. McBride was suspended for allegedly interfering with a report on the allegations.

One theory is that he was trying to protect Dramat. The other is that he is being targeted by former crime intelligence boss Richard Mdluli after an investigation into an alleged love-triangle murder.

Advocate Tembeka Mgcukaitoba had argued, on behalf of the minister of police in the McBride stay application, that both the national assembly and Cabinet were aware of the appointment of the chairperson of the inquiry and the disciplinary steps and had not expressed any reservations.

It was also impossible for the minister of police to influence proceedings, as it had appointed an independent chairperson to ensure fairness and impartiality.

Mokoena ruled that the application to stay the disciplinary hearing pending the outcome of the constitutional challenge in the High Court in Pretoria was dismissed.

He also dismissed  the application to have the disciplinary hearing stayed pending Cabinet's designation of a chairperson in terms of the Disciplinary Code and Procedures of the Public Service.

There was no cost order.

According to an earlier agreement, the disciplinary hearing would proceed from July 27 to 31 if the stay application failed.



Read more on:    ipid  |  hawks  |  nathi nhleko  |  anwa dramat  |  robert mcbride  |  pretoria

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