Press Release: HSF Approaches Constitutional Court For Leave To Appeal Against Order Sanctioning Unlawful IPID Agreement

The Helen Suzman Foundation ("HSF") has approached the constitutional court for leave to appeal against an order of the Supreme Court of Appeal (“SCA”) upholding an order made on 12 February 2019 by the Pretoria high court. The high court order sanctioned an agreement (“the agreement”) between the Independent Police Investigative Directorate (“IPID”), Mr Robert Mcbride as then executive director of IPID, the Minister of Police (“The Minister”) and the portfolio committee on police on a mechanism for the renewal of the head of IPID’s term of office.

In terms of the Independent Police Investigative Directorate Act (“IPID Act”), the Executive Director of IPID serves for a term of five years, renewable for one additional term. However, the IPID Act does not mention who is required to make a decision regarding renewal or how it is to be made.  The agreement sanctioned in the High Court Order authorises a process by which the Minister is empowered to make a “preliminary decision” on the renewal of the term of office of the Executive Director of IPID, which the Portfolio Committee then confirms or rejects.

The SCA dismissed the HSF’s appeal against the High Court Order. It held that the Order did not threaten the adequate independence of IPID since the Minister’s role is limited to making a non-binding recommendation on renewal and the involvement of the Portfolio Committee is not antithetical to independence. It held that the role played by Parliament acts as a bulwark safeguarding IPID’s independence.  

However, the SCA’s judgment is inconsistent with Constitutional Court’s clear jurisprudence on renewable terms of office and the constitutional requirement of independence. The Constitutional Court has on numerous occasions held that a political actor is not permitted to make a decision on the renewal of a term of office of a head of an independent institution, such as IPID, as this is incompatible with the requirements of adequate independence. 

The SCA Order, thus, gives a judicial stamp of approval to a constitutionally impermissible interpretation of the IPID Act – eroding the independence of IPID and exposing it to actual or perceived political interference.

Moreover, the High Court Order was obtained in a constitutionally impermissible manner without the court scrutinising the constitutionality of the renewable term of office contained in the IPID Act or the interpretation given thereto in the agreement. The SCA failed to deal properly with the High Court’s abdication of its judicial duties.  

The application to the Constitutional Court will determine the fundamental question of the constitutional validity and lawfulness of the interpretation of the IPID Act sanctioned in the High Court Order, and upheld by the SCA, and the constitutionality of the process by which that Order was granted. The legal conclusions reached by the Constitutional Court will guide ongoing and future conduct by the Minister, the Portfolio Committee and IPID concerning the renewal of the term of office of the Executive Director of IPID, with an immediate impact on the independence of IPID.

The HSF’s application for leave to appeal can be found here.

Media Enquiries

Christopher Fisher

Chelsea Ramsden