McBride was earlier this week informed that Police Minister Nathi Nhleko was considering placing him on cautionary suspension. He applied to the High Court in Pretoria for an interim interdict to stop the process. This was despite making representations to the minister, who has not yet made a decision about his suspension.
McBride wants to stop the suspension process pending an application to set aside the minister’s decision to initiate the process and to declare provisions of the IPID Act, which authorises the Minister to suspend or remove him, unconstitutional. McBride maintained his suspension was inevitable as the minister had prejudged the issue.
He claimed the minister wanted to suppress an IPID report which vindicated Hawks head Anwa Dramat and Gauteng head Shadrack Sibiya from any wrongdoing in the illegal rendition of Zimbabwean nationals. The court earlier declared both Dramat and Sibiya’s suspension unlawful, but refused Sibiya’s application to stop his disciplinary hearing.
McBride has been accused of deliberately “hiding” the existence of a January 2014 IPID report which recommended that Dramat and Sibiya should be charged with kidnapping and defeating the ends of justice. However, he said in court papers the January 2014 report was a preliminary report and the final report which vindicated Dramat and Sibiya was drawn up after all evidence was considered.
He insisted the Minister had been aware of both reports. McBride’s advocate Steven Budlender argued that the mere initiation of the suspension process was unlawful because it affected the fundamental constitutionally guaranteed independence of IPID. He said even if the minister decided not to suspend McBride, he would still know that he was beholden to the minister for his security of tenure.
“The harm is ongoing because my client is required to make representations to the minister under pain of suspension,” he said.
Budlender argued that McBride was no ordinary employee as he was there to safeguard the public.
“That the head of IPID should sing for his supper before the minister to explain why he should not be suspended is in itself unconstitutional,” he said.
Counsel for the Minister William Mokhari SC argued that McBride had simply not shown that he would suffer any irreparable harm as no decision about his suspension has been made yet. He said McBride had the right to approach the court again if he was in fact suspended. He said McBride’s case differed substantially from that of the Helen Suzman Foundation about Dramat’s suspension as the minister did not have the power to suspend the Head of the Hawks without a parliamentary process while the IPID Act gave him the right to suspend the IPID director.
“He’s made written representations to the minister….but he then pre-empts the minister’s decision, effectively preventing the minister from making a decision.
“He actually wants to stop the minister from considering his representations.
“…The constitution does not require absolute independence (of IPID and the Hawks), just adequate independence.
“You cannot equate it to judicial independence.
“…The very people who fill those positions must be beyond reproach.
“There is no right to be protected at the moment because no decision has been made,” Mokhari said.
READ MORE: McBride interdict should not be granted: police minister