The most recent developments in the ongoing war between the police and the Independent Police Investigative Directorate (IPID) raise fascinating legal questions about the independence of the police watchdog and the limits of the SAPS’s powers.
Who has the highest investigative authority in the land? The Constitution mandates IPID to investigate misconduct in the police, but who should investigate members of IPID when they breach the law? Can it be the police if they are themselves compromised? Or is IPID above the law?
In new court papers filed by IPID’s lawyers, they argue that, politics aside, there is a legal case to be made that a police officer or his or her direct superior can not investigate a member of IPID when that SAPS member has a personal interest in such an investigation, or is himself or herself the subject of an investigation by IPID.
It seems logical. You don’t, after all, sit on the panel of the school’s disciplinary committee when your child has to appear for pushing another on the playground.
But let’s back up and get all the facts.
The war currently raging between acting National Police Commissioner Khomotso Phahlane and Robert McBride, who has according to sources close to him been in a ruthless mood since his reinstalment as head of IPID, go way back.
But on November 1, 2016, IPID launched an investigation into Phahlane based on evidence that, between 2014 and last year, the top cop allegedly - and amongst other things - sold or traded in several cars and was paid well above the book price for the vehicles. In one instance, a dealership reportedly paid Phahlane R650 000 for a Land Rover that was worth only R550 000. He also allegedly paid contractors for work on his house in bags of cash from the boot of his car. You can’t make this stuff up.
In retaliation Phahlane instituted civil proceedings against McBride to set aside a search warrant for his house that was issued as part of the IPID investigations. Phahlane later said he had no problem co-operating with an investigation into his shady deals by "any competent authority", implying IPID was not.
However, even before this, on January 4, Phahlane laid criminal charges at the Kameeldrift Police Station in Pretoria against the very IPID investigators that were looking into him. He then facilitated that the investigation be transferred into the safe hands of Brigadier Pharasa Ncube and his team in North West.
Ncube is not only himself being investigated by IPID, but the team of detectives he works with under the command of Major General Ntebo "Jan" Mabula, are currently the subject of at least seven IPID investigations for, amongst other things, torture, murder and assault.
The motives and agendas behind this power struggle are no doubt political and have already taken up much column space. But the motives are really only relevant in so far it has created this stand-off that boils down to a stress test for the limits and provisions of the SAPS Act, the independence of the police watchdog, and the Constitution’s provisions in this regard.
So who is right and what does the law say?
IPID is established by the Constitution and the IPID Act as a body independent of the police, in order to ensure that the police are accountable and responsive. Its functions are to investigate any alleged unlawful conduct by any police member.
The SAPS, in turn, are functionaries of the SAPS Act, and organs of the state, and according to the Constitution, must maintain a high standard of professional ethics, which includes avoiding a conflict of interests. The SAPS Act requires that they exercise their powers fairly, impartially, equitably and without bias.
Furthermore, the IPID Act requires each organ of the state (including the police) to assist it in maintaining its impartiality and performing its functions effectively.
A SAPS member investigating a member of IPID who is investigating that very same SAPS member (I’m also dizzy reading that), therefore surely flies in the face of these legal and constitutional provisions. In light of this, it can’t be legal for a SAPS member to undertake or oversee a police investigation if he or she has a personal interest in the matter. In fact, this principle should apply to any person who is being investigated by the police for a crime – not just IPID investigators.
But what happens if the investigating members of IPID are themselves in breach of the law, as alleged by Phahlane? Are IPID members immune from prosecution? Are they above the law? Who should investigate the ultimate investigators?
The answer is simple: the police should.
You might argue that this then brings us right back to our initial question, i.e. Who has power over who and where does it stop? In a perfect world, both IPID and the police have the ultimate power. But in the South Africa we live in, you can bet your last buck that the limits of the powers of each will first be tested, which is exactly what is happening now.
Yes, a member of the police should, like any member of the public, be able to lay a complaint against a member of IPID if they feel they’ve overstepped their powers. But not if the police are themselves subject to investigations or have a personal interest in such an investigation; nor if their direct superior has a personal interest in such an investigation.
Despite 5 519 cases against police members being opened with IPID in the 2015/2016 book year, that still leaves close to 195 000 SAPS officials that can investigate any case made against an IPID member.
If the police are still not satisfied that IPID is indeed independent, perhaps there is merit in a separate, independent complaints office being set up to look at irregularities in IPID. Of course, that will be at the risk of a third party simply joining the political stand off.
- Alet Janse van Rensburg is opinions editor at News24.
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