Robert McBride. Picture: ALON SKUY/THE TIMES
Robert McBride. Picture: ALON SKUY/THE TIMES

The Helen Suzman Foundation (HSF) has filed an application with the Constitutional Court to appeal an order of the Pretoria high court between the Independent Police Investigative Directorate (Ipid) executive director Robert McBride and police minister Bheki Cele.

In January, Cele wrote to McBride informing him that his contract would not be renewed or extended when it expires at the end of February. McBride then filed an urgent application, asking the high court in Pretoria to declare Cele’s decision to not renew his contract as “unconstitutional, unlawful and invalid”.

The court granted an interim order that stated that the parties in the matter had agreed that Cele’s decision was preliminary and that it must still be confirmed or rejected by the portfolio committee. The committee was still discussing the matter late on Tuesday.

“The agreement authorises a process by which the minister is permitted to make a ‘preliminary decision’ not to renew the term of office of the executive director of Ipid, which the portfolio committee then confirms or rejects,” the foundation said on Tuesday.

The foundation said in terms of the Ipid Act, the head of Ipid serves for a term of five years, which is renewable for one additional term — without mentioning who is required to make a decision on such renewal. 

However, the Constitutional Court has on numerous occasions held that a political actor is not permitted to make a decision on the renewal of a term of office of an executive of an independent institution, such as Ipid, as this is incompatible with the requirements of adequate independence, the Helen Suzman Foundation said.

“A decision by a political actor on such a renewal (or non-renewal) is therefore constitutionally invalid and a court order which gives effect to a process requiring such a decision is unconstitutional. This obviously has no bearing on the powers of the portfolio committee regarding the suspension or removal of the head of Ipid, which are set forth in the Ipid Act (as amended by a 2016 Constitutional Court judgment),” the foundation said.

It said the order of court is suspended by operation of law as a result of its leave to appeal application. 

“Pending the conclusion of the leave to appeal application, the current renewal process endorsed by the high court order should be placed on hold until a final determination by the Constitutional Court,” the foundation said.

The independence of the Ipid head has been a hot political issue in recent years. In 2016, the Constitutional Court ruled that the police minister had no authority to dismiss the Ipid head without parliament instituting the necessary processes. This was after former police minister Nathi Nhleko moved to suspend McBride.

He returned to the helm of Ipid in 2016, after a bitter turf war with Nhleko and former acting national police commissioner Khomotso Phahlane.

The Constitutional Court said in its ruling that Ipid is an independent body established in terms of the constitution. It noted that section 4(1) of the Ipid Act required it to function independently of the SA Police Service (SAPS).

The Constitutional Court said in its ruling, “Given the nature, scope and importance of the role played by police in preventing, combating and investigating crime, Ipid’s oversight role is of cardinal importance.”

phakathib@businesslive.co.za