Robert McBride was suspended by Minister Nkosinathi Nhleko after being accused of covering up the involvement of Dramat and Sibiya in a case that has now come to be known as the “Zimbabwean rendition saga”. All of this led to the falling of dominoes which ultimately resulted in the appointment of Lieutenant-General Mthandazo Ntlemeza to head up the country’s Directorate for Priority Crimes Investigation, or the Hawks.

This is the same directorate that has hounded Finance Minister Pravin Gordhan and that allegedly was about to hand over a docket on Gordhan and several other suspended SARS officials to the NPA for criminal prosecution.

An original report by IPID into the Zimbabwean rendition had implicated Dramat and Sibiya in the matter but a later report had exonerated them both. McBride currently faces charges of fraud and defeating the ends of justice along with IPID national investigations leader Matthews Sesoko and former Limpopo IPID head Innocent Khuba for allegedly removing evidence between drafts.

In March this year Khuba deposed a damning affidavit which suggested that Ntlemeza had conspired against Dramat and was trying to sideline McBride at the behest of “political principals”.

Khuba had known Ntlemeza when he was Limpopo’s deputy police commissioner and said that he [Ntlemeza] had visited him at home October 2013 and had offered information about the case, surprising him with the revelation that former Crime Intelligence chief Richard Mdluli was “looking out for his interests” and that he “shouldn’t be scared” with regard to submitting his report on Dramat.

“He said my report was the one holding everything regarding his move to the Hawks. I spoke to my wife saying that by accepting the request to investigate the rendition case, I do not know what I got myself into,” said Khuba.

On Tuesday the Constitutional Court will hear confirmation proceedings in respect of the the North Gauteng High Court order that declared unlawful and unconstitutional provisions of the Independent Police Investigative Directive Act, 2011 (‘IPID Act’), its Regulations, and the Public Service Act, afford the Minister of Police the power to suspend, discipline or remove from office the Executive Director of IPID.

The Helen Suzman Foundation (HSF) has intervened in the case amicus curiae, contending that the Act failed to provide adequate institutional, operational and structural safeguards for IPID’s independence. The HSF has relied on previous findings of the Constitutional Court, in which the lobby group had appeared, relating to the inadequate independence of the Hawks.

The High Court concurred with the HSF’s submissions that because IPID performs an oversight and accountability role in respect of the Hawks it must be at least as, if not more, independent from undue political interference than the Hawks.

The Court agreed with HSF’s argument that a key feature of IPID’s legitimacy is that it has to be seen to be independent by the public. Unless it is seen to be independent, its capacity to investigate corruption is undermined. That order was suspended for 12 months, to allow Parliament time to correct these defects. In the interim, it was ordered that the provisions of the SAPS Act, 1995, dealing with the suspension and removal of the head of the Hawks, apply to the head of IPID.

In a statement the HSF noted that since the delivery of the High Court judgment, the Minister of Police had conceded that the impugned provisions did not provide for the adequate protection of the independence of IPID. But despite this concession, the Constitutional Court is now required to exercise its power to confirm all aspects of the High Court’s order.

The HSF arguments on Tuesday will have two main components; the Constitution requires that all judicial remedies be “effective”. To be effective, an order must uphold and enhance the values underlying and the rights entrenched in the Constitution. To satisfy this requirement, the default position is that unconstitutional conduct must be set aside in its entirety, from inception. In this case, this would include the actions taken by the Minister under the unconstitutional provisions of IPID, relating to the suspension of Mr McBride as Executive Director of IPID.

The second component is that the HSF will argue that pending Parliament’s correction of the defects of the IPID Act, the suspension and removal provisions pertaining to the head of the Hawks should apply to the Executive Director of IPID. Interim measures of this nature are essential for IPID’s effective and efficient functioning. Only with measures of this nature will the public have confidence in the independence of IPID.

“The HSF anticipates that the Constitutional Court will find confirm the findings and the order of the High Court,” said HSF director Francis Antonie.

McBride has said that he is still willing to face a disciplinary hearing. “All I am seeking to do is ensure that such disciplinary proceedings must occur in a manner that protects my independence and that of Ipid,” he said in an affidavit. DM

Photo: Robert McBride is seen at the Constitutional Court in Johannesburg on Thursday, 30 September 2010 during an appeal by the Citizen newspaper against an award of damages and defamation granted to him. Picture: Werner Beukes/SAPA