McBride has ‘good case’ against top cop – experts

Police Minister Bheki Cele has an uphill battle on his hands following his decision not to renew the five-year contract of Robert McBride, the Independent Police Directorate (Ipid) head, when it expires next month.

This is due to what experts see as a “reasonable expectation” created by the Ipid Act for the contract to be renewed.

A letter from Cele addressed to McBride on January 16 has informed him of the nonrenewal of his contract, which expires on February 28 – a decision the Ipid boss has described as “illegal”.

McBride gave Cele until close of business on Thursday to withdraw the decision, calling on him to refer the matter to the parliamentary police portfolio committee and to furnish reasons for his intention not to renew the contract.

Commenting on the McBride-Cele standoff, Wits University School of Law professor Stephen Tuson yesterday said it appeared McBride “has a strongly arguable case”.

Said Tuson: “McBride does have a leg to stand on when one looks at the law and its application.

“The Ipid Act provides for the minister to nominate an individual and for that nomination to be approved by parliament. In other words, the minister cannot take a unilateral decision not to renew McBride’s contract – because he has to appoint in consultation with parliament.”

Tuson said the law also compels Cele, when renewing or not renewing McBride’s contract, to do so through a consultation with parliament and to provide reasons.

“The minister’s letter to McBride appears to be contradictory in terms of the Act when he informs him of a decision not to renew his contract, also saying the decision not to renew the contract will be provided to parliament.

“Minister Cele can’t have it both ways. He cannot make a final decision not to renew but then say parliament will consider the matter,” Tuson said.

According to Tuson, the Ipid Act provides for two terms upon the appointment of the executive director, which creates “a reasonable expectation of renewal”.

“The minister has simply taken a unilateral decision not to renew McBride’s contract without consulting parliament and without providing McBride an opportunity to be heard,” Tuson said.

Another expert, professor Debbie Collier from the University of Cape Town’s Institute of Development and Labour Law, echoed Tuson’s view on the importance of “a reasonable expectation”.

Collier said: “Only if the employee can prove that he or she has a reasonable expectation that the contract would be renewed, can the employee claim to have been unfairly dismissed.

“To […]claim dismissal in circumstances of non-renewal of a fixed-term contract, the employee must establish that he had expected the contract to be renewed.”

– brians@citizen.co.za

For more news your way, download The Citizen’s app for iOS and Android.