The legality of appointment processes relating to the head of IPID was the focus of discussions in the Supreme Court of Appeal on Friday, with the Helen Suzman Foundation (HSF) trying to have a previous ruling in this arena overturned.

An appeal by the foundation was set down to be heard on Friday but several legal issues first needed to be ironed out to determine exactly how to proceed.

The matter arose last year when former IPID executive director Robert McBride took legal action after Minister of Police Bheki Cele opted to not renew his contract, which at that stage was set to end on 28 February 2019.

McBride argued that the decision taken by Cele was unlawful and wanted Cele to provide reasons for his decision. Cele then approached Parliament’s portfolio committee on police and asked it to either endorse or reject his decision.

McBride launched an urgent court action and the Helen Suzman Foundation was admitted as friend of the court (amicus curiae).

Just before these proceedings were due to play out, a settlement was reached between McBride, IPID, Cele and the portfolio committee.

Also, Judge Wendy Hughes granted an order in the Gauteng High Court in Pretoria that the portfolio committee on police would effectively decide whether or not to renew the contract.

But the HSF was not comfortable with this, taking issue with interpretation of a section of the IPID Act relating to the appointment and renewal of an executive director.

In its planned heads of argument in the SCA matter, the HSF said: “This private agreement and agreed interpretation concentrate the power of renewal in the Minister and the committee, thus exposing IPID to political interference or the perception of such interference. It is plainly an unlawful interpretation…

“The legality of the agreed interpretation was never ventilated in open court … Instead, the High Court rubber-stamped the agreement as a consent order, without any consideration as to its constitutionality.”

The HSF wanted Hughes’s order overturned.

It said the new interpretation “endorsed by Hughes” was that the Minister of Police must make a preliminary recommendation on whether or not to renew an executive director’s tenure.

“This immediately creates the danger that an executive director may shape his or her actions so as to win the minister’s approval. Such a concentration of power has, repeatedly, been ruled unconstitutional,” the HSF’s SCA court papers said.

The portfolio committee on police would have to reject or endorse the minister’s decision.

“It has no guidelines stipulated by which it must make its decision,” argued the HSF. “Moreover, the committee is a political entity… Again, this exposes IPID to undue political interference, as the executive head may wish to curry favour – or be perceived to curry favour – with a particular political party or faction.”

The HSF is set to present a case for how critically important IPID’s functions are.

“IPID’s importance in our constitutional project is concretised by its corruption-fighting function, particularly where that corruption may be in the ranks of those who have sworn to protect and serve the public, being the South African Police Service and municipal police services. These bodies, in turn, house essential corruption-fighting organisation themselves, including, for example, the ‘Hawks’ (the Directorate for Priority Crime Investigation or DPCI),” HSF court papers said.

“Given that members of the police, most particularly the DPCI, are charged with fighting corruption, often at an executive level, it is essential that not only are these bodies sufficiently independent, but the body which exercises oversight over them — namely IPID — is itself independent.”

In July the HSF noted with “some alarm” that Cele had written to the National Assembly nominating Jennifer Dikeledi Ntlatseng as the preferred candidate as the new executive director of IPID — this while the Supreme Court of Appeal matter it was driving was still pending.

The proceedings are set to resume during the court’s first term next year. DM