On 06 September 2016, the Constitutional Court declared section 6(3) and (6) of the Independent Police Investigative Directorate (IPID) Act unconstitutional. Section 6(6) of the IPID Act, read with regulation 13 of the IPID Regulations, conferred on the Minister of Police the power to suspend, initiate disciplinary proceedings, and remove the Executive Director of IPID. This means that at the time the Minister took the decision to suspend Mr McBride he acted in terms of a valid law.

The Constitutional Court also set aside the suspension of Mr McBride, but suspended its operation for 30 days to allow Parliament and the Minister to decide on the disciplinary steps against Mr McBride. Subsequent to the Constitutional Court ruling, the Minister of Police (the “Minister)  addressed a letter on 7 September 2016 to the Honourable Speaker of the National Assembly (the “Speaker), requesting her to constitute a committee of the National Assembly or to authorise the Portfolio Committee on Police to initiate disciplinary proceedings against Mr Robert McBride on grounds of misconduct in terms of section 6(6) of the IPID Act 1 of 2011 as amended by the Constitutional Court order in the matter of Mc Bride vs Minister of Police and Another [2016] ZACC 30.

The Speaker responded with a letter dated 11 October 2016 received by the Minister on 12 October 2016.  In this letter, the Speaker states amongst others, that:

“Subsequent to receiving the letter of 7 September, I requested a legal opinion on the matter to clarify the internal processes to be followed in order to deal with the request. The legal opinion indicated that the Portfolio Committee on Police must be empowered to consider the request by way of a House Resolution.”

The last paragraph of the letter reads …”I have nevertheless referred the request to the Portfolio Committee on Police.”

On 12 October 2016 a formal referral was made on Announcements, Tabling and Committee Reports that the request by the Minister is referred to the Portfolio Committee on Police for consideration.  On 14 October 2016 the Chairperson of the Portfolio Committee on Police issued a statement confirming that the Committee would consider the matter of Mr McBride on Tuesday, 18 October 2016.

On Monday 17 October 2016 the Minister attended a study group caucus wherein he was advised that the matter of Mr McBride had been scrapped off the agenda of 18 October 2016. The Minister was invited to the strategy caucus held on 18 October 2016 in Parliament which he could not attend because the matter had fallen off the agenda of Parliament.

Since Parliament has not taken a decision on the matter and the 30 days suspension period has automatically lapsed, effectively giving Mr McBride the right to return to his position as of the 19 October 2016.

The Minister has written a letter to Mr McBride informing him that in light of his conduct during his suspension and utterances he made about the Minister it is clear that the employment relationship between them is irretrievably broken down.  The Minister has subsequently advised Mr McBride to approach the Speaker of the National Assembly for clarity on where he should be reporting under the prevailing circumstances. 

The suspension of the IPID Executive Director was based on allegations that he had tampered with a report that recommended criminal charges against two senior South African Police members allegedly implicated in an illegal extradition process of four Zimbabweans. 

It must be noted that the Constitutional Court decision did not deal with the merits of the alleged misconduct by Mr McBride. 

The Minister places it on record that the suspension and disciplinary process against the IPID Head had to do with the Minister’s commitment to the Rule of Law and respect for human rights. In this case the dehumanisation of the African was a major concern and thus it should be for all of us.

Observations

It is extremely concerning as to how the process was handled. For instance;

·         Why the letter of 7 September 2016, was only responded to on 11 October 2016, even though the sitting of the House rose on 15 September 2016?

·         That while Rule 227(1)(c) empowers a Committee of Parliament to conduct work of this nature, the suggestion that a House resolution was required before the Committee could consider this matter, did not make sense.

·         That Parliament announced through Announcements, Tabling and Committee Reports that the matter was referred to the Portfolio Committee on Police but subsequently instructed not to proceed with the matter as a result the matter was struck off the agenda of Parliament.

·         That in a matter as serious such as this where human and African lives were lost, we are experiencing a set of behaviour which negates the severity of this matter.

·         That to date Parliament has not taken a decision within the timeframe as prescribed by the Constitutional Court Order.

The Minister commits to fulfilling the SAPS’s mandate and constitutional obligations towards the strengthening of the South African's criminal justice system.