South Africa

IPID vs Minister of Police

McBride heads for a showdown with Cele over non-renewal of contract

McBride heads for a showdown with Cele over non-renewal of contract
Archive Photo: Former Independent Police Investigative Directorate boss Robert McBride at the Portfolio Committee on Police in Parliament, 29 March, 2018. Photo by Leila Dougan

IPID Director, Robert McBride, the man at the centre of several key investigations into police corruption, particularly among senior SAPS officers, has challenged Minister of Police Bheki Cele’s decision not to renew his five-year contract. McBride said Cele has acted unconstitutionally and is violating IPID’s legislated independence.

From exposing former National Commissioner Khomotso Phahlane’s alleged corrupt links to SAPS suppliers to investigating an alleged attempt to syphon off R45-million from the Crime Intelligence budget before the ANC’s Nasrec elective conference in 2017, IPID director Robert McBride is at the centre of several crucial investigations.

There are, it is safe to say, many who would be relieved to see the back of the outspoken and controversial IPID head.

On 16 January, Minister of Police, Bheki Cele, wrote to McBride informing him that the contract he had entered into with former Minister of Police, Nathi Mthethwa, on 20 February 2014 and 1 March 2014, was coming to an end on 28 February 2019 and would not be renewed.

McBride had been initially recommended by Cabinet for the top job in 2013 but was later illegally suspended by Mthethwa’s successor, Minister of Police Nathi Nhleko, in 2015.

McBride challenged the suspension in the Constitutional Court in 2016 and was reinstated after Judge Chris Japhta ruled that the Minister of Police did not have the power to intervene in IPID matters.

It is precisely this judgment that McBride has highlighted in a hard-hitting letter he sent to Cele on Tuesday demanding that he [Cele] withdraw his decision not to renew his five-year contract as head of IPID and refer the matter to the correct body, the Portfolio Committee on Police.

Minister Cele’s spokesperson Reneilwe Serero confirmed to Daily Maverick that the letter had been sent to McBride on 16 January.

In his communication with the IPID head, Cele wrote, “I hereby inform you that I have decided not to renew or extend your employment contract. You are hereby advised that your last official working day will be 28th of February 2019.”

Cele said he had made the decision in terms of Section (6) 3 of the Independent Police Investigative Directorate Act 2011 which provided that “such an appointment is for the term of five years which is renewable for one additional term only.”

On Tuesday, 22 January, McBride sent an Information Note to Cele, copying in the Speaker and Chief Whip as well as Minister of Public Service and Administration, Ayanda Dlodlo, and the chair of the Portfolio Committee on Police, Francois Beukman.

In the note, McBride demanded that Cele withdraw the decision and “immediately refer the decision on whether to renew or extend my employment contract to the Portfolio Committee on Police”.

Cele has until 24 January to respond to the demand or face legal action.

The decision whether or not to renew or extend my term as Executive Director of IPID is not yours to take. It is a decision that vests in the relevant Parliamentary Committee as the body ultimately responsible for appointing the Executive Director,” McBride wrote to Cele.

McBride said that “by unilaterally determining whether my tenure as the Executive Director of IPID should be renewed or extended and terminating my holding of the office you have acted unlawfully and in violation of the constitutionally-entrenched independence of IPID”.

He reminded Cele that the Constitutional Court had ruled in McBride vs The Minister of Police and another that the Executive Director of IPID was not a public servant employed by the Minister of Police under the Public Service Act.

As the head of an independent institution, the Executive Director is appointed by and holds office at the instance of the relevant Parliamentary Committee, being the National Assembly’s Portfolio Committee on Police,” said McBride.

He said that the Constitutional Court specifically held that section 6 (3) of the IPID act was unconstitutional for making the Executive Director subject to the laws governing public service.

The Constitutional Court, in paragraph 39 of its judgment, stated that “to subject the Executive Director of IPID, which the Constitution demands to be independent, to the laws governing the public service – to the extent that they empower the Minister to unilaterally interfere with the Executive Director’s tenure – is subversive of the IPID’s institutional and functional independence, as it turns the Executive Director into a public servant subject to political control of the Minister.”

McBride wrote, “the decision you have now taken purports to backtrack on that concession and is in direct contravention of the provisions of the IPID Act and the judgment of the Constitutional Court”.

The IPID Director said that even if Cele had the powers to make the decision, he [McBride] was entitled to reasons for his decision.

In the event that you decide not to accede to my demands, I hereby request the written reasons for your decision, to be furnished to me by no later than close of business on 24 January 2019,” McBride told Cele. DM

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