HSF Helps Secure another Victory for Independent Institutions

On 4 December 2015, the North Gauteng High Court delivered a seminal judgment in Robert McBride v Minister of Police and Others).

The applicant, McBride, was challenging, inter alia, the lawfulness of his suspension as the Executive Director of the Independent Police Investigative Directive (‘IPID’) and the constitutionality of certain parts of the Independent Police Investigative Directive Act, 2011 (‘IPID Act’).

The HSF intervened as amicus curiae (friend of the court), contending that the IPID Act failed to provide adequate institutional, operational and structural safeguards for IPID’s independence. The HSF relied on previous findings of the Constitutional Court (Glenister v President of the Republic of South Africa and Helen Suzman Foundation v President of the Republic of South Africa and Others), in which the HSF had appeared.

The High Court agreed with the HSF’s submissions that because IPID performs an oversight and accountability role in respect of the Directorate for Priority Crime Investigation (‘the Hawks’), it must necessarily be at least as, if not more, independent from undue political interference than the Hawks. The Court concluded that the IPID Act was unconstitutional, in that it afforded the Minister of Police an untrammelled power to interfere with the activities of the DPCI through exerting undue pressure on, if not abusing the powers of, IPID.

Lastly, the Court also agreed with the HSF’s argument that an important feature of IPID’s legitimacy is that it is seen to be independent by the public. Unless IPID is seen to be independent, its capacity to investigate is undermined—meaning it will be less efficient when tackling police corruption and the excessive use of force.

The High Court declared unlawful and unconstitutional those provisions of the IPID Act, its Regulations, and the Public Service Act that purport to afford the Minister the power to suspend, discipline or remove from office the Executive Director of IPID. The order has been suspended for 12 months, to allow Parliament time to correct these defects. In the interim, the provisions of the SAPS Act, 1995, dealing with the suspension and removal of the head of the Hawks, will apply to the head of IPID.

The Helen Suzman Foundation is pleased that the High Court has vindicated its long-held beliefs that the rule of law and constitutional supremacy depends on independent intuitions. This latest ruling, when read with others, serves as an indictment of those who would seek to undermine the independent institutions that have the constitutional authority to hold the government accountable.

The matter will now proceed to the Constitutional Court for confirmation.

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Kameel Premhid - Legal Researcher - - 071 676 3878