McBride suspension unlawful, matter now with Parliament

2016-09-06 16:00
Robert McBride (File: Theana Breugem, Netwerk24)

Robert McBride (File: Theana Breugem, Netwerk24)

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Johannesburg - The suspension of Ipid head Robert McBride has been declared unlawful and the National Assembly has been ordered to review the law giving the minister of police powers to intervene in Ipid matters.

"It is declared that the decision of the minister of police to suspend Mr Robert McBride from his position as executive director of Ipid is invalid and is set aside," Justice Chris Jafta said at the Constitutional Court.

"It is declared that the decision of the minister of police to institute the disciplinary inquiry against Mr Robert McBride which was to commence on 21 May 2015 is invalid and is set aside. The minister of police is directed to pay the costs of Mr Robert McBride."

In the judgement Jafta added that Parliament had two years to evaluate and rectify the law that gives the minister of police powers to meddle in the running of Ipid.

"It is declared that the present provisions are invalid to the extent that they authorise the minister of police to suspend, take any disciplinary steps pursuant to suspension or remove from office the executive director of the Independent Police Investigative Directorate. Parliament is directed to cure the defect in the defects within 24 months from the date of this order," he said.

The judge said pending the correction of the defects, section 6 of the Ipid Act needed to be altered and subsections 17 of the SAPS Act 68 of 1995 applied to the suspension and removal of the executive director of Ipid with changes as may be required by the context.

McBride's victory however comes with conditions. He is still suspended for the next 30 days in order for the National Assembly and the minister of police, if they so choose, to exercise their powers.

Suspended for altering report

The court challenged and requested that sections of the Public Service Act proclamation of 1994 and regulation 13 of the Ipid regulations should be declared inconsistent with section 206 of the Constitution and should not apply to the executive director of Ipid.

McBride was suspended in March 2015 for allegedly altering a report by Ipid on former Hawks boss Anwa Dramat and Hawks Gauteng head Shadrack Sibiya. They were accused of illegally deporting a group of Zimbabweans wanted for murder. McBride had lodged an urgent application to stop police Minister Nathi Nhleko from suspending him. The court found it not to be urgent and struck the matter off the roll.

McBride secured a hold on his disciplinary hearing, pending the outcome of this court challenge. The dispute over whether Nhleko could suspend McBride went all the way to the Constitutional Court, which heard the matter on May 17.

That hearing was an application for confirmation of a High Court order that declared certain provisions of the Ipid Act 1 of 2011; the Public Service Act, 1994; and the regulations for the operation of the Independent Police Investigative Directorate, 2011, inconsistent with the Constitution and invalid. 

McBride did not believe they gave Nhleko the power to suspend him or remove him from office. 

The High Court ruled that the independence of Ipid, expressly guaranteed under section 206(6) of the Constitution, was not protected by the relevant legislative provisions. This was referred to the Constitutional Court for confirmation.

Read more on:    ipid  |  constitutional court  |  robert mcbride  |  johannesburg

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