In December 2015 suspended IPID head Robert McBride successfully argued in the Johannesburg High Court that the IPID Act was unconstitutional as it allowed the Minister of Police, Nathi Nhleko, to suspend and remove the directorate’s head, a situation McBride’s legal team argued threatened the independence of a body tasked with conducting independent and impartial investigations into police corruption, criminality or misconduct.

McBride was suspended in March 2015 by Nhleko after accusations that he had tampered with evidence relating to an investigation into the apparent illegal deportation of five Zimbabweans suspected of murder and involving former Hawks boss Anwa Dramat and Gauteng Hawks head, Major-General Shadrack Sibiya. While a first investigation had implicated both Dramat and Sibiya, a second one exonerated both men. McBride’s disciplinary hearing was halted pending his High Court application which was successful.

In May this year the matter was argued in the Constitutional Court, where Nhleko finally had to concede that those provisions of the act were indeed unconstitutional. Be that as it may, Nhleko still argued that his decision should stand while McBride in turn requested that the Constitutional Court give Parliament 30 days to decide whether it wanted to institute a disciplinary hearing against him. The ConCourt has reserved judgment on the matter.

Meanwhile, on Tuesday, McBride’s colleague, Matthews Sesoko, suspended IPID director of investigations (and co-accused along with former IPID Limpopo head, Innocent Khuba on charges of defeating the ends of justice) asked the Labour Court to stay his disciplinary hearing, due to take place this month, pending a High Court application he also brought this week. Sesoko signed off on the final report exonerating Dramat and Sibiya.

Sesoko’s Pretoria High Court Application is essentially a replication of McBride’s application to the Johannesburg High Court seeking to find sections of the IPID Act unconstitutional. He is also seeking that the appointment of IPID’s Acting Executive Director, Israel Kgamanyane, also be set aside.

In his founding affidavit to the High Court, Sesoko said that Kgamanyane, during a meeting in which he was informed of his suspension, Kgamanyane “kept referring to third parties as ones giving him instructions to put me on suspension”.

“In the context of the discussion I understood the instruction to be coming from the Minister (Nhleko),” says Seseko in his affidavit.

Seseko alleges that this also occurred when Kgamanyane suspended his colleague Innocent Khuba. It was Khuba who filed a chilling affidavit in his criminal case in March this year saying that a colonel from Crime Intelligence (CI) had become involved in the investigation into the illegal Zimbabwean renditions and that it was CI who had arrested the men in the first place. Khuba maintains that he had been instructed to keep their involvement secret.

In the affidavit Khuba exposes the alleged involvement of Mthandazo Ntlemeza, current head of the Hawks (who replaced Dramat) and who was then Deputy Commissioner of Police in Limpopo. Nlemeza, said Khuba, had offered more information about the Zimbabwean case and had also told him that former Crime Intelligence chief, Richard Mdluli, “was looking out” for his interests and that he should not be afraid. Ntlemeza also asked Khuba when he would be submitting his report on the rendition.

McBride has maintained that there is a hidden hand behind the sidelining of several senior law enforcement officials including himself, Dramat and Sibiya because they were uncompromising in their investigation of sensitive cases involving high-profile South Africans.

Speaking at the Daily Maverick’s The Gathering, McBride said there was a concerted and deliberate attempt to freeze out and disable a cohort of former Umkhonto we Sizwe members and operatives from the country’s security apparatus, replacing these with “apartheid” or “bantustan” relics who are willing to take instructions instead of fulfilling their mandates.

In his affidavit to the High Court on Tuesday Sesoko said that Kgamanyane “is not making decisions and is receiving instructions from the minister or third parties unknown to me”.

Ultimately Sesoko argued that the legal issues he faces with regard to his suspension are identical to those faced by McBride.

“I submit that, but for McBride’s unlawful suspension, Kgamanyane would not have been appointed as the acting executive director and therefore he would have no opportunity to suspend and/or take disciplinary action against me,” Sesoko argued in his affidavit.

The saga of the suspended IPID officials is part of the ongoing “lawfare” that is playing itself out in the country’s courts, where those who seek to maintain their hold over key institutions either tie up perceived opponents in legal knots or challenge decisions by the courts that might be viewed as unfavourable.

The fightback is a life-and-death struggle between men and women who once were compatriots but who are now fighting a different kind of war. The case resumes on Thursday. DM

Photo: From left to right: Former Independent Police Investigative Directorate (IPID) investigators Matthews Sesoko and Innocent Khuba & head Robert McBride in court on Wednesday 16 March 2016. Picture: Barry Bateman/EWN.