“The applicant is not on suspension and no decision has been made,” Police Minister Nathi Nhleko’s lawyer William Mokhari told the court. “Is he entitled to exercise those rights in this court on an urgent basis?” he asked. McBride received a letter from Nhleko on Wednesday morning asking him to make submissions by the end of the day about why he should not be suspended. He had made the submissions as a matter of caution.
McBride’s lawyer Steven Budlender confirmed that McBride had not yet been suspended and that, according to discussions in Chambers, it was agreed he would not be suspended until judgment was delivered.
He asked the court to declare the minister’s decision unlawful and invalid, and sought an order declaring unlawful provisions giving the minister permission to suspend the head of an independent body.
Mokhari argued that, according to the Ipid Act, Nhleko had the power to suspend McBride.
“[It’s] not enough to say the applicant wants to set aside the act, because it’s a power the minister has,” he said.
“The minister may remove the executive director from office on account of misconduct, ill health, or inability to perform the duties of that office effectively,” he quoted from the act.
Nhleko could not simply “wake up” and say he was going to remove McBride, but had to follow due process.
“You’ve got to give him the opportunity to say ‘I’ve got these allegations against you, these allegations are serious, I want you to make written submission to me’. Here, the minister is conferred a statutory power.”
Mokhari argued that McBride had the right to approach the court after the minister had made a decision and constitutional issues could be dealt with at the Constitutional Court.
In response, Budlender argued that the Constitutional Court had previously ruled that the high court could grant urgent interdicts if it was the interest of justice; if the rights of the person seeking relief and those affected were balanced; and if the interdict was tailored not to affect legislation.
Budlender argued it was essential that Ipid remain independent of the SA Police Service, as its job was to investigate the police.
“Your lordship was not told why it is that the head of Ipid should have a lesser degree of independence than the head of the Hawks.”
Judge Hans Fabricius said he would make an order on Wednesday and would probably give written reasons later.
McBride, who sat in the front row of the public gallery wearing a black pinstripe suit and mustard tie, left the court immediately it adjourned.