Parliament can’t allow Cele to postpone Ipid nomination under law – legal advisor

Parliament does not have the power to extend the deadline for Police Minister Bheki Cele to nominate a candidate for the Independent Police Investigative Directorate (Ipid) executive director, Parliament’s chief legal advisor said.

Nonetheless, the portfolio committee on police on Wednesday, after receiving this legal opinion, resolved to confirm Cele’s nomination, Jennifer Dikeledi Ntlatseng.

He submitted her name to Parliament six months after the legally prescribed deadline. The post became vacant on 28 February 2019 when Robert McBride’s term ended.

This after Cele was adamant he should not be reappointed, and the ANC contingent on the previous portfolio committee on police ensured his contract was not extended in a contentious process early last year, which was also the genesis of the Helen Suzman Foundation’s court application.

Section 6(5) of the Ipid Act states the minister “must” fill the vacancy “within a reasonable time, not exceeding a year”. But by 1 March 2020, Cele had not nominated a candidate. On two occasions, the committee granted him an extension.

“The aforementioned section of the Ipid Act is mandatory and must be strictly followed by the minister.

“The use of the word ‘must’ in section 6(5) of the act denotes that there is no discretion on the part of the minister in respect of the exercise of the mandatory power that is provided in the relevant section,” read the legal opinion drafted by Parliament’s chief legal advisor, advocate Zuraya Adhikarie.

She stated, furthermore, the act was silent on what should happen if the minister did not adhere to the deadline.

“Most importantly though, the section does not clothe Parliament with the power to extend the period. The principle of legality directs that organs of state may only exercise a public power that has been given to them in terms of the law and that power must not exceed its defined scope.

“Notwithstanding, it is the obligation of Parliament, by virtue of its oversight authority to hold the minister accountable if there is noncompliance with any act”.

Adhikarie recommended the committee “should exercise its oversight power by enquiring about the reasons for the delay”.

The legal opinion is dated 11 June. Cele informed Parliament of Ntlatseng’s nomination in a letter dated 30 June.

The committee resolved Cele should submit a comprehensive report for the committee’s next meeting on why he breached Section 6(5) of the Ipid Act.

At Wednesday’s meeting, Cele told the committee, as he did at previous meetings, the post was advertised, candidates were shortlisted and interviewed, but a suitable candidate was not found.

The panellists who conducted the interviews were himself, his deputy Cassel Mathale, Justice Minister Ronald Lamola, Communications Minister Stella Ndabeni-Abrahams, Secretary for Police at Civilian Secretariat for Police Service Alvin Rapea and two representatives from the human resources department.

A service provider named Ultimate Recruitment Solutions were then appointed to find suitable candidates, and they compiled a shortlist of 24 candidates.

They then provided the same panel with five candidates from which the panel selected three candidates for interviews, after which they decided to nominate Ntlatseng.

It took the committee just under two hours to listen to Cele’s briefing, dealing with the legal opinions and considering whether to confirm Ntlatseng’s nomination, after which committee chairperson Tina Joemat-Pettersson said: “There is no way we’ve simply rubber-stamped the nominee”.

Not so, said DA MP Andrew Whitfield in a statement released after the meeting: “The DA does not support this appointment and believes that Parliament has again been relegated to nothing more than a rubber stamp of the ANC.”

He added the DA’s repeated appeals against the nomination process have been blatantly ignored by the committee and the party was of the view Ntlatseng’s nomination was in contravention of the Ipid Act.

“The fact is the entire process is fatally flawed and has been shrouded in secrecy while the selection panel was loaded with ANC politicians. This in and of itself, leaves a cloud of suspicion and doubt hanging over the nomination and appointment processes”.

FF Plus leader Pieter Groenewald, who also did not support confirming the nomination, considered the entire process to be flawed.

“The appointment was clearly steamrollered through by the ANC majority in the portfolio committee because the minister failed to appoint someone to fill the position within the prescribed timeframe,” he said in a statement released after the meeting.

In her statement, Joemat-Pettersson said: “The appointment is historic in the sense that it is the first time that a female candidate has been appointed to this position under the Ipid Act [2011].

“The support of the nominated candidate for appointment to the executive director position for Ipid is in terms of Section 6 of the Independent Police Investigative Directorate Act, 2011 [Act No 1 of 2011].

“The committee is of the view that the candidate has the requisite skills and experience to lead Ipid to greater heights and will ensure effective oversight over the police.

“The committee is also satisfied that the appointment process was robust and thorough, leading to the appointment of a candidate who understands the scope of the work. The committee is convinced that the best candidate was nominated.”

There was, however, general agreement in the committee the appointment process as contained in the act should be amended.

Whitfield has already submitted a Private Members Bill which he said would ensure independently limit the powers of the police minister in appointing the executive director of the police watchdog.

The committee will also await a comprehensive vetting report on the candidate. The nomination must still be adopted by the National Assembly.

Who is Jennifer Ntlatseng?

Police Minister Bheki Cele’s letter informing Parliament of Ntlatseng’s nomination, contains the following information about her:

• She is 49 years old.
• She holds LLB and B.Proc degrees from Unisa.
• She has over 21 years’ experience with safety and security in the public sector, ten of which was at senior manager level.
• She was the director for community police relations at the Gauteng Department of Community Safety.

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