SCA postpones Helen Suzman Foundation’s appeal in McBride renewal process

The Supreme Court of Appeal (SCA) wants to hear from former Independent Police Investigative Directorate (Ipid) head Robert McBride on a legal bid to set aside an order sanctioning a deal he and Police Minister Bheki Cele struck last year to let a portfolio committee decide his fate.

McBride rushed to the High Court in Pretoria in January after learning his contract as Ipid head was set to expire the following month and that Cele had decided not to renew it. He wanted an order that stated the decision was not Cele’s to make, but at the last minute the two reached a settlement agreement.

It was made an order of the court by Judge Wendy Hughes, in terms of which the decision was to be deferred to the police portfolio committee. The portfolio committee also wound up deciding against the renewal of his contract, a decision he has reportedly sought to have reviewed.

McBride has since been appointed as director of the State Security Agency’s foreign branch. In the meantime, though, the Helen Suzman Foundation (HSF), which had been admitted as amicus curiae, or friend of the court, in the original case, has launched an application for leave to appeal against the order Hughes handed down that day. HSF argued it reflected a “constitutionally impermissible” and an “unlawful” interpretation of the Ipid Act.

“This private agreement and the court’s endorsement, concentrate the power of renewal in the minister and the committee, and exposes Ipid to political interference, or the perception of such interference,” the foundation said in heads of arguments, “The legality of the agreed interpretation was never ventilated in open court. The high court rubber-stamped the agreement as a consent order, without any consideration as to its constitutionality”.

When the application came before a full bench of the SCA, with Judge Mahomed Navsa presiding, yesterday, questions were raised around the potential negative impact of the relief sought on McBride himself. While it’s understood McBride has filed a notice of intent to abide by the court’s decision – and it was yesterday suggested he was no longer interested in pursuing the case in question – Navsa expressed concern there were discrepancies between the cases presented in the papers and in court.

“We need to decide a couple of things,” Navsa put to the counsel in court, which included advocate Max du Plessis for the HSF, as well as advocate Tembeka Ngcukaitobi for the police and Ipid.

“We have to decide what is truly before us …. We have to decide whether the matter should be struck for having no practical effect and whether Mr McBride has any further interest in this case – and if he does, if he should he be joined and entitled to make further representations,” Navsa said.

He suggested the case be postponed to the first term of next year so the position of all the original litigants could be made clear.

“An affidavit will be filed in respect of what was imparted to us – that McBride has taken up a position and has no further interest in that of the Ipid head.”

– bernadettew@citizen.co.za

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