South Africa


The curious, agonising, perplexing case of the ANC vs Robert McBride

Independent Police Investigative Directorate boss Robert McBride at the Constitutional Court during the hearing of his case regarding his suspension on May 17, 2016 in Johannesburg, South Africa. (Photo by Gallo Images / Beeld / Cornel van Heerden)

A critical decision with regard to the appointment of the new head of IPID is wending its way through Parliament and two courts. Robert McBride will know his fate at noon on Thursday. During the two days of debate in Parliament this week, ANC committee members, some of them viciously defensive, clearly moved in a unified formation to block McBride’s reappointment.

So far, it has been a bitter and long battle of attrition with Executive Director, Robert McBride, surviving several attempts at dislodging him during his tenure and which played out during the height of IPID’s investigations into allegations of State Capture and the role of the SAPS.

So, why would the ANC turn on McBride here and now?

Especially considering the spirit of Thuma Mina’s commitment to rooting out endemic corruption across the state and government departments. And even more peculiar, only a few months away from a general election?

That something is out of kilter was evident during Tuesday’s heated and at times vicious debate by members of the Police Portfolio Committee with regard to McBride’s reappointment.

Should the committee opt not to renew McBride’s contract, his legal representative, Advocate Steven Budlender, has informed the Gauteng High Court that the matter should be heard before midnight on Thursday, 28 February.

Meanwhile, the Helen Suzman Foundation (HSF) on Tuesday lodged papers with the Constitutional Court. The HSF is appealing a 12 February 2019 Pretoria High Court sanction of an “agreement” between IPID, McBride, the Minister of Police, Bheki Cele, and the Portfolio Committee, that Cele’s decision not to renew McBride’s contract is “preliminary” and needed still to be confirmed or rejected by the committee.

The endorsement of the process by the High Court, says the HSF, must be placed on hold until there’s been a final determination on the matter by the Constitutional Court.

The entire process has been complicated and costly – not only financially, but also personally for McBride, and politically for the ANC.

But if there is an institution that shares the blame for the current hot mess, it is the Police Portfolio Committee itself.

It was the police committee that missed the Constitutional Court’s 5 September 2018 deadline to amend the IPID Act in line with the court’s judgment that the Minister of Police, as a political appointee, had too much power in the decision to suspend or remove the IPID head, be it McBride or anyone else.

The amended IPID Act ensures greater independence of the police watchdog and isolates it from political interference.

But the legislative drag or delay occurred because the SAPS Civilian Secretariat drafted a Bill which had required “substantial consultation processes with respect to processing and this has taken time”, the committee reported back in July 2018.

The process initiated by the Civilian Secretariat for Police, the committee said, “would not allow for Parliament to proceed and comply with the deadline determined by the Constitutional Court. The judgment was 6 September 2016 and the deadline for the President to assent to an IPID Amendment Act to cure the defects as identified by the Constitutional Court, is 5 September 2018.”

Right now, the Act is stuck at the NCOP while the clock ticks.

So, here we are, with only days to go before McBride’s contract comes to an end, with no real direction as to who is actually responsible for the appointment.

Had the committee moved its butt on the Bill, we would not be sitting at this potentially politically explosive crossroads.

During the two days of debate in Parliament this week, ANC committee members, some of them viciously defensive, clearly moved in a unified formation to block McBride’s reappointment.

Remember, this is the same ANC that McBride, as a special MK operative, once ended up on Death Row for.

But it is also an ANC which, to McBride and many of his old comrades, is no doubt unrecognisable, an entirely different organisation as the governing party, and it is this that lies at the heart of the IPID head’s extraordinary fearlessness with regard to investigations into police corruption at high levels.

While Robert McBride may not be an easy man to work with, until now the ANC’s Chief Whip Jackson Mthembu, as well as Scopa, have praised him for the work he has done as IPID head and his attempts at flushing out corrupt leadership, including in Crime Intelligence, which has featured at the centre of State Capture allegations.

On Tuesday, however, ANC committee member Leonard Ramatlakane launched a scathing attack on McBride, going so far as to claim that McBride’s allegation that the directorate is investigating an attempt in November 2017 to launder R45-million from the CI budget – at the instigation of then recently-appointed CI acting head, General King Bhoyi Ngcobo – to buy votes at the ANC’s Nasrec conference, was “a red herring” and devoid of truth.

How Ramatlakane is so sure of this is uncertain and puzzling. Especially considering that documents relating to the R45-million “grabber procurement” just before the Nasrec conference, as well as other suspicious SAPS contracts, are yet to be declassified. This despite a recommendation by the Inspector-General of Intelligence, Setlhomamaru Dintwe.

McBride has spent months meeting with SAPS National Commissioner Khehla Sitole as well at the DPCI, seeking access to these documents, but with little co-operation. SAPS leadership undertook several times while presenting to Scopa that it would make the dockets and documents available to McBride.

Minister of Police, Bheki Cele, as well as Sitole insist the grabber procurement had to do with “national security” while IPID and the IGI maintain this is an attempt to cover up criminality and was about procurement itself and not a threat to the country.

On Tuesday, ANC members also questioned McBride’s security clearance and vetting and his entitlement to access classified documents.

In other words, they don’t want him anywhere near these files.

Ramatlakane was having none of it. The cases IPID was investigating, he correctly asserted, were not only up to McBride in the long run.

It is not the responsibility of one individual to make sure they are prosecuted,” said Ramatlakane on Tuesday.

Cases, he added, needed to be submitted to the NPA, which would make a decision on whether to prosecute. It was a fallacy, said Ramatlakane, for McBride to claim that if he should not be reappointed, “everything will collapse and they will shut down the door”.

And certainly, with the appointment by President Ramaphosa of Shamila Batohi as NPA head, this might well be the case at present, but the NPA during McBride’s tenure was headed, let us not forget, by the irregularly appointed Shaun Abrahams.

With regard to the “grabber” procurement, Ramatlakane claimed, “I don’t know about this grabber. It is absurd. How can the grabber work at the ANC conference? We don’t need a grabber for voting at an ANC conference.”

What Ramatlakane seemed not to have considered is that it was not the grabber that was needed, but the bloated sum of money that would have been accessed through the alleged inflated procurement. R45-million for something that sells for R8-million on the open market. You do the maths. Not small change and all of it from the SAPS CI budget, remember.

ANC committee member Jerome Maake – referring to a Public Service Commission report that McBride had abused his power and had acted unconstitutionally when he had stripped one of his colleagues of her security clearance and had transferred her – also lashed out at McBride.

The executive director went against the Constitution of this country, I don’t think there’s anything bigger than that,” an angry Maake stated.

When DA committee member, Dianne Kohler-Barnard, attempted to point out that the committee did not have information as to why McBride had acted unilaterally in transferring the employee, Maake responded, “Why don’t they just keep quiet,” with regard to Kohler-Barnard as well as DA member Zakhele Mbhele’s probing questions.

Kohler Barnard reminded the committee nonetheless that after the PSC report, “the woman had been returned to her position. No reference to the Constitution was made and the decision was reversed. We should have a letter from him [McBride] filling us in on why he took action. The PSC did not recommend action be taken against McBride.”

ANC member Livhuhani Mabija, clearly annoyed at what appeared to be the DA’s defence of McBride, told committee chair Francois Beukman, “I humbly request that the two honourable members in front of me stop fumbling, trying to divert the true facts of the issue… they are just playing with our minds. They are testing our reasoning powers and that is taxing and we do not like it.”

What was not discussed or debated, however, is the fact that McBride and IPID itself was investigated by a rogue SAPS team from North West led by General Jan Mabula and called in by then suspended acting National Commissioner Khomotso Phahlane. That is until the High Court put a stop to it. The counter-investigation by the Mabula team began soon after the IPID investigation into acting commissioner Phahlane had begun.

It would not be unreasonable for McBride to be paranoid. The law enforcement cluster, including the NPA and SAPS, positively bristles with paranoia. And there is only one independent body that can investigate corruption in this cluster – IPID.

When committee chair Beukman shifted the debate on Tuesday onto the “political context” of McBride’s appointment, Maake shut it down instantly, claiming, “we were not asked to deal with this. The political context is not our duty to deal with. The facts now depend on what party you belong to… why don’t you save that for your rallies,” he said, looking in the general direction of the DA MPs.

National Freedom Party committee member Ahmed Shaik Emam claimed that McBride was acting as if he was engaged in a war, that he was a “law unto himself” and that he thought he was right and everyone else wrong.

The DA’s Zakhele Mbhele argued that the political considerations surrounding McBride did indeed need to be taken into account.

It is very much the case that this country, in a period and context where we are having to come to grips with many things that have happened and that have gone wrong, must do so. Close your eyes, throw a dart at any SOE or government department and you will find it has been captured, that it is corrupt or that it is collapsing. It is in this context that we are dealing with IPID,” he said.

The evidence that IPID claimed was prima facie with regard to police corruption created a “systemic risk at which these processes, this cleansing work, is placed if leadership transition issues such as this are not handled with utmost care,” warned Mbhele.

IPID was not, he added, “a standard run-of-the-mill department or public sector entity, as confirmed through the courts. It requires specific and careful and customised handling which is why this committee has to drive the amendment process. That, in conjunction with the context I have outlined, means it has bearing on how we handle the renewal.”

It was not about whether McBride was a “top notch” candidate, said Mbhele, but the fact that “we ought to have known his contract was coming to an end. If the Minister had advertised last year, and the process arrived here, we could have had information to make an assessment. Right now we can only ruminate on and try and reach a determination on McBride.”

In other words, if the Minister and the committee had done its work, the mess and the controversy could have been avoided.

Indefatigable Ramatlakane said the removal of McBride was in line with President Cyril Ramaphosa’s commitment to rooting out corruption “where it exists”.

That is the position of the government that is leading this country. I want to unmask this so-called current political context [of McBride’s tenure]. For me, it really looks like the naked footwork of someone who wants sympathy and wants to use everything that is in the public domain to drive an agenda for certain things.”

Which “certain things” these were, Ramatlakane did not elaborate on.

For now a drip, drip feed of what it is McBride knows has made its way into the public realm as the embattled IPID head prepares to testify at the Zondo Commission. He might no longer be the head of IPID when he does so, but the old soldier is not going to go down without a fight.

Many in the criminal justice cluster will be named, some politicians, maybe even judges. Whatever the committee decides, the public will come to hear the depths of what it is McBride claims to have uncovered. After that, it will be up to the courts and the NPA to act. It will be the IPID head’s last stand.

Whatever the end result, McBride would have done his work and taken his mission as far as it can go. What happens next is anyone’s guess but it does go to the heart of the so-called “renewal’” of the state, the government and the ANC.

And in this regard, IPID is as crucial as the NPA, the Hawks and the judiciary.

History and time will prove who was telling the truth and who against it. DM


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