McBride v Minister of Police and Others (Helen Suzman Foundation as Amicus Curiae)

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Mogoeng CJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
• Judgment Date: 06 September 2016
• Citation: 2016 (2) SACR 585 (CC)
• Hearing Date: 17 May 2016
• Docket Number: CCT 255/2015 [2016] ZACC 30
• Counsel: S Budlender (with J Bleazard) for the applicant. WR Mokhari SC (with T Ngcukaitobi, F Hobden and J Raizon) for the first respondent. No appearance for the second and third respondents. C Steinberg for the amicus curiae.

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, H Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring):

Introduction

[1] On 4 December 2015, acting in terms of s 172(1)(a) of the I Constitution, [1] the High Court of South Africa, Gauteng Division, Pretoria (High Court), declared several sections of the Independent

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

A Police Investigative Directorate Act (IPID Act) [2] inconsistent with the Constitution and invalid. These were s 6(3)(a) and 6(6) of the IPID Act; ss 16A(1), 16B, 17(1) and 17(2) of the Public Service Act; [3] and reg 13 of the IPID Regulations for the Operation of the Independent Investigative Directorate (IPID regulations), [4] which were found to be inconsistent with B s 206(6) of the Constitution and thus invalid, to the extent that they purport to authorise the Minister of Police to suspend, take disciplinary steps pursuant to the suspension, or remove from office the executive director of the Independent Police Investigative Directorate (IPID). [5]

[2] For this declaration of invalidity to have legal force, it must be C confirmed by this court in terms of s 172(2)(a) of the Constitution. [6] Hence the application to this court.

[3] The applicant is Mr Robert McBride, the executive director of IPID since 3 March 2014. He has been on precautionary suspension since 24 March 2015 — pending a disciplinary inquiry to be initiated against D him by the Minister of Police. The first and second respondents are the Minister of Police and the Minister of Public Service and Administration, respectively. Only the Minister of Police (Minister) participated in the proceedings before us. The Helen Suzman Foundation (HSF), a non-governmental organisation whose main objective is to defend the E values that underpin our constitutional democracy and to promote respect for human rights and the rule of law, was admitted as amicus curiae (friend of the court) and presented oral submissions before us.

[4] Section 206(6) of the Constitution provides for the establishment of an independent police complaints body by national legislation. [7] Pursuant F to this section, Parliament established IPID. Its primary duty is to

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

investigate any alleged misconduct or offence committed by a member of A the police service. IPID's independence is further bolstered by s 4 of the IPID Act which provides that the Directorate functions independently from the South African Police Service (SAPS). [8]

[5] However, this must be contrasted with s 206(1) of the Constitution, which provides for a member of the Cabinet to be responsible for B policing and the determination of national policing policy. [9] Allied to this is s 6(3) [10] of the IPID Act which makes IPID's executive director subject to the laws governing the public service, as well as s 6(6) [11] which authorises the Minister to remove the executive director from office on specified grounds. But this section is silent on oversight of the Minister's action by Parliament. C

[6] Mr McBride's primary submission is that the cumulative effect of these pieces of legislation is that IPID does not have sufficient safeguards to ensure that its executive director and IPID, as an institution, are able to act with sufficient independence. The gravamen of this submission is D that these provisions are inimical to any notion of the independence of the executive director as demanded by both the Constitution and the IPID Act.

[7] Although the Minister opposed the application in the High Court, before us he made qualified, albeit far-reaching, concessions. The Minister accepted that the impugned provisions do not provide adequate E protection of the independence of IPID. As a result, he supported the confirmation of invalidity as per para 1 of the order of the High Court.

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

A But he opposed confirmation of paras 3, 4, 5 and 6 of the High Court's order. These, in part, sought to read ss 17DA(3) – 17DA(7) of the South African Police Service Act [12] (SAPS Act) into s 6(6) of the IPID Act — pending the expiry of 12 months or correction of the defect(s) by the legislature, whichever should occur first. The other B part of the opposed order has the effect of insulating the executive director from the application of ss 16A(1), [13] 16B, [14]

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

17(1) [15] and 17(2) [16] of the Public Service Act. The Minister also A

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

A opposed the setting-aside of the decision to suspend Mr McBride from his position as executive director of IPID, and institute disciplinary proceedings against him. It is to be noted that the High Court suspended the effect of these two orders, pending parliamentary intervention.

[8] Central to this application is the crisp question: whether, in the light B of the applicable statutory framework, IPID enjoys adequate structural and operational independence, as envisaged by s 206(6) of the Constitution, to ensure that it is effectively insulated from undue political interference.

Background C

[9] At the time when Mr McBride took office on 3 March 2014, there was a political storm brewing over the alleged unlawful rendition of four Zimbabwean nationals in November 2010 and January 2011. Lieutenant General Anwar Dramat (General Dramat), then the head of the Directorate for Priority Crime Investigation (DPCI), and Major General Sibiya D (General Sibiya), then the provincial head of Gauteng, were allegedly implicated in these unlawful renditions.

[10] IPID initiated an investigation into this matter, overseen by Adv Mosing (Mr Mosing), of the National Prosecuting Authority (NPA), assisted by Mr Innocent Khuba (Mr Khuba), the provincial head: IPID, E Limpopo. On 22 January 2014 IPID issued its first report (January report) which concluded that General Dramat and General Sibiya were involved in the illegal renditions of the Zimbabweans. It recommended that criminal charges be brought against them.

[11] Mr Khuba explained in his affidavit that because he regarded the F January report as provisional, he continued with his investigations. His investigations gave birth to a second report, dated 18 March 2014 (March report), which was signed by Mr Khuba; Mr Matthews Sesoko, Chief Director: IPID Investigation and Information Management (Mr Sesoko); and Mr McBride. Contrary to the first report, the second report concluded that there was no evidence implicating General G Dramat and General Sibiya in the illegal renditions of the Zimbabweans. As a result, it recommended that no criminal charges be brought against them. This report was submitted to the National Director of Public Prosecutions (NDPP) for a decision on possible prosecution on 13 April 2015.

H [12] Faced with the glaring discrepancies in the two reports, the Minister suspected serious tampering. As a result, he commissioned Werksmans Attorneys (Werksmans) to investigate the two reports. Relying on the January report and the investigation by Werksmans, the Minister invoked his powers in terms of s 6(6) of the IPID Act, the Public Service

Bosielo AJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

Act and ch 7 of the Senior Management Services Handbook (SMS A Handbook), and placed Mr McBride on precautionary suspension on 24 March 2015. Acting on the strength of s 6(6)(a) of the IPID Act, read with the provisions governing disciplinary proceedings under the Public Service Act and the IPID regulations, the Minister served Mr McBride with a notice to attend a disciplinary enquiry. B

In the High Court

[13] The Minister's actions stung Mr McBride into a defensive mode. Mr McBride instituted an urgent application before the High Court, firstly for an interim interdict to restrain the Minister from suspending C him, and, secondly, for an order declaring s 6(3)(a) and 6(6) of the IPID Act, reg 13 of the IPID regulations, ss 16A(1), 16B, 17(1) and (2) of the Public Service Act (only insofar as they apply to the executive director of IPID), paras 2.5, 2.6, 2.7(1) – (5) of ch 7 and paras 18 – 19 of ch 8 of the SMS Handbook (impugned provisions) constitutionally invalid and D setting them aside. In addition, Mr McBride sought an order to review and set aside the decision by the Minister to suspend him as the executive director of IPID and to institute disciplinary proceedings against him.

[14] Relying on s 206(1) of the Constitution, the Minister opposed this E application. He asserted that this section gives him the power to oversee the police as the Cabinet member responsible for policing. The disciplinary proceedings he had instituted against Mr McBride were therefore lawful, as they are authorised by s 206(1). He contended further that ss 6(3)(a) and 6(6) of the IPID Act authorised him to invoke the laws governing the public service to remove the executive director of IPID F from office. He also relied on ss 16A(1), 16B, 17(1) and 17(2) of the Public Service Act, which authorise him to take appropriate disciplinary proceedings against Mr McBride as head of IPID.

[15] The High Court found that the independence of IPID is expressly G guaranteed and protected under s 206(6) of the Constitution, which is 'significant and decisive'. [17] Furthermore, the High Court reasoned that, given...