Suzman Foundation’s application over McBride’s IPID contract dismissed

“This is a peculiar appeal,” wrote judges of the Supreme Court of Appeal in dismissing an application by the Helen Suzman Foundation (HSF) over former IPID head Robert McBride’s contract.

The judges also found the application by the foundation regarding the reinstatement of McBride to be “illogical”.

The judgment was handed down on Wednesday, long after McBride had moved on from his job as head of the Independent Police Investigative Directorate, and the to-and-fro over who can decide to extend an IPID head’s contract or not, was settled.

The foundation had applied as a friend of the court to have this settlement, and order of the High Court dated 12 February 2019, set aside.

It also wanted McBride’s contract to be extended.

The court noted that the application was odd because the matter had been settled, and the primary figures in the matter were not part of the litigation, including McBride. Another friend of the court, Corruption Watch, had also thrown in the towel.

The controversy started when McBride wrote to Police Minister Bheki Cele in September 2018, pointing out that his five-year tenure would end in February 2019, and asking whether he would still have a job and if his contract would be extended.

The minister wrote back to say that his contract would not be renewed, setting off a retort by McBride that it was not up to the minister, but rather Parliament’s Portfolio Committee on Police, to decide on whether his contract would be renewed.

Cele circled back and said it was actually only a preliminary decision, and that the committee would have to discuss it and make a decision.

This was eventually sorted out, with the portfolio committee confirmed as the right place to make the decision, in terms of Section 6 of the Independent Police Investigative Directorate Act.

The agreement on this was made an order of the court, and McBride moved on to the SSA, where he heads the foreign branch.

However, the HSF persisted with its application on who should decide a contract extension, because the Act does not specifically cover this.

The HSF also wanted to have Cele’s preliminary decision set aside, and it wanted McBride’s tenure renewed for another five years – from 1 March 2019 to 28 February 2024.

It argued that the minister could not make the decision because IPID must stay independent, nor could a committee of politicians.

The foundation had argued that it should be up to McBride to decide whether he should stay.

“Put differently, what was argued by the HSF was that the reappointment should not be subject to the whims of any political actor or actors, and that the incumbent had a free and unfettered option to renew his or her contract of employment,” the judgment read.

“Furthermore, the proffered interpretation is not only illogical, but could have disastrous results. Why, one could rightly enquire, if it lies in the hands of an incumbent to decide whether to remain in the position, is provision made for possible renewal or extension?

“The suggested interpretation by the HSF might have the result that someone who had failed miserably at performing the tasks of an executive director is the determinative voice in deciding his or her continued tenure. That would be an absurd result.”

The application was dismissed.

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