Robert McBride. Picture: SIMPHIWE NKWALI/SUNDAY TIMES
Robert McBride. Picture: SIMPHIWE NKWALI/SUNDAY TIMES

Robert McBride has filed an urgent court application to challenge the decision to not renew his contract as head of the police watchdog. 

McBride’s contract as Independent Police Investigative Directorate (Ipid) head was due to lapse on Thursday. Earlier in the day, the police committee backed police minister Bheki Cele’s decision to not keep McBride in the role for another term. 

In a statement, McBride said the committee’s decision was irrational.

“The independence of Ipid is under attack by no less than the minister of police and rubber-stamped by the [portfolio committee on police], which failed to protect Ipid’s independence — not for the first time. I have filed papers today to review the patently irrational decision by the [committee], which is the de facto decision of the minister,” said McBride.

“I am proud of the Ipid team, which has shown an unwavering commitment to fighting corruption in the face of opposition, persecution and interference at the highest levels.” 

On numerous occasions, the Constitutional Court has 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

DA MPs have criticised the committee’s decision and boycotted  the parliamentary session where the decision was made. The party argues that its views on the matter have been completely ignored.

“The fact is that there are no compelling, substantive reasons not to renew McBride’s contract,” said DA MP Zakhele Mbhele. “All that the minister gave to the committee in his submission of reasons were allegations that are, as yet, untested and unproved. Nor can anything else that has surfaced be assessed as being egregious enough to warrant non-renewal.”

Mbhele said that what the saga has made clear is that the Ipid Act is defective in providing for a renewable term for the Ipid executive director.

“Given the need for the independence of Ipid, identical to that for the Hawks, it is now clear that the term of the Ipid head should be similarly non-renewable and lengthened so that any incumbent can fulfil their responsibilities without fear of career consequences from a seemingly vindictive minister.”

‘Unconstitutional, unlawful and invalid’

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

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

ANC members argued during deliberations that the relationship between Cele and McBride have clearly broken down. Various MPs also stated that McBride does not have a legal right to an automatic extension or renewal of his contract. They said that, should he be interested in remaining in his position, he should apply when it is advertised and go through an interview process like any other candidate.

Earlier this week, the Helen Suzman Foundation (HSF) filed an application with the Constitutional Court to appeal the order of high court in Pretoria.

“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 that 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, on numerous occasions, the Constitutional Court has 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 foundation said.

“A decision by a political actor on such a renewal (or non-renewal) is therefore constitutionally invalid and a court order that 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.

“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 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 requires it to function independently of the SA Police Service. 

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