UPDATE: Robert McBride files urgent interdict against his removal

The DA was in favour of keeping McBride on, with the majority ANC and its MPs against it. They agreed that Police Minister Bheki Cele made the right call in not extending the five-year contract.

In the aftermath, however, McBride launched an urgent court interdict against this being his last day of work. He wants the committee’s decision to be declared unlawful, invalid, reviewed and set aside for a fresh decision within 30 days.

McBride’s lawyers want the committee to hand over all records relating to their decision to the High Court in Pretoria.

The final report, which was deliberated on since Monday, was accepted unanimously, with the DA’s Dianne Kohler Barnard and Zakhele Mbhele not present. They said they were boycotting it since the whole thing was a “sham”.

The matter will now be referred back to the High Court in Pretoria for a final decision. The committee cited an apparent breakdown in trust between McBride and the police minister, Bheki Cele, as swaying their decision.

McBride had been locked in a dispute with Cele, who in January informed him that his contract would not be renewed and that he should vacate his office at the end of February.

McBride contended that Cele had no authority to make such a decision and maintained his contract as head of the independent body could only be decided by Parliament.

On 12 February, McBride took Cele to the Pretoria High Court to ask the court to find Cele’s decision “unconstitutional, unlawful and invalid” and to set it aside.

But before arguments were made, both McBride and Cele’s counsel reached an agreement that the decision on whether or not to renew McBride’s appointment rested with the portfolio committee for police and not with the minister. The end of February was retained as a deadline and the agreement was made an order of the court.

The portfolio committee started deliberating McBride’s term of office last Friday.

Members of Parliament’s police committee on Thursday also lashed out at private forensic investigator Paul O’Sullivan, who it claimed had attempted to intimidate MPs during their process to decide McBride’s fate.

ANC MP Jerome Maake read out a letter, purportedly from O’Sullivan, in which MPs were accused of being guided by “criminals like Cele”, referring to Police Minister Bheki Cele.

In the letter to committee chairman Francois Beukman, he is asked to hand over the names and ID numbers of MPs serving on the committee, and all information relating to their financial disclosures contained in the register of members’ interests for investigation.

Beukman was not impressed, saying this was one of several communications sent to MPs.

“I must really express my shock and dismay at some of the comments and WhatsApps members of this committee received in the last 72 hours. It is really totally unacceptable. Members cannot be put under undue pressure by lobby groups.

“We are not a banana republic, where when decisions must be made there are threats against members. It is serious,” said Beukman.

Courts likely to have final say

The Helen Suzman Foundation believes that the high court agreement will not stand up to constitutional scrutiny anyway.

The foundation claims the agreement illegally gives the minister the authority to make a “preliminary decision” before being decided on by the portfolio committee as to whether to renew or not the term of office of the head of Ipid.

The foundation has applied for leave to appeal the ruling in the Constitutional Court.

The foundation said the IPID Act – which allows for its head to serve for five years, renewable for one additional term – is unclear on who is required to make a decision on such renewal and believes the Constitutional Court should provide clarity.

“The Constitutional Court has on numerous occasions 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 in a statement on Tuesday.

The foundation said it believed the Pretoria High Court agreement was “unconstitutional” and any authority given to the minister of Police by the agreement over the renewal process was “constitutionally invalid”.

It said the petitioning of the Constitutional Court would have no effect on the powers of the portfolio committee as this was already set forth in the IPID Act.

Should the Constitutional Court agree to hear its appeal, the “current renewal process endorsed by the high court order should be placed on hold” until a final determination was made, the foundation said.

It is not known when the Constitutional Court will decide if it will hear the appeal.

If the Constitutional Court finds the process was unconstitutional and McBride is dismissed, his dismissal will need to be overturned.

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