In its judgment, the High Court declared unlawful and unconstitutional provisions of the Independent Police Investigative Directive Act, 2011 (‘IPID Act’), its Regulations, and the Public Service Act, that purport to afford the Minister of Police the power to suspend, discipline or remove from office the Executive Director of Independent Police Investigative Directorate (‘IPID’).
The applicant in the High Court, Mr. Robert McBride, had challenged, inter alia, the lawfulness of his suspension as Executive Director of IPID, and the constitutionality of certain parts of the IPID Act. The Helen Suzman Foundation (‘HSF’) intervened as amicus curiae, contending that the Act failed to provide adequate institutional, operational and structural safeguards for IPID’s independence. The HSF relied on previous findings of the Constitutional Court, in which the HSF had appeared, relating to the inadequate independence of the Directorate for Priority Crime Investigation (‘the Hawks’).
The High Court agreed with the HSF’s submissions that—because IPID performs an oversight and accountability role in respect of the Hawks—it must be at least as, if not more, independent from undue political interference than the Hawks. The High Court concluded that the IPID Act was unconstitutional, in that it afforded the Minister of Police untrammeled power to interfere with the activities of the Hawks, by being able to exert undue pressure on IPID. The Court agreed with HSF’s argument that a key feature of IPID’s legitimacy is that it be seen to be independent by the public. Unless it is seen to be independent, its capacity to investigate corruption is undermined.
The High Court’s order was suspended for 12 months, to allow Parliament time to correct these defects. In the interim, it was ordered that the provisions of the SAPS Act, 1995, dealing with the suspension and removal of the head of the Hawks, apply to the head of IPID.
Since the delivery of the High Court judgment, the Minister of Police has conceded that the impugned provisions do not provide for the adequate protection of the independence of IPID. Despite this concession, the Constitutional Court is required to exercise its power to confirm all aspects of the High Court’s order. In the hearing on Tuesday, rather than repeat the arguments it made in the High Court, the HSF’s arguments will focus on the issue of remedy. Its arguments will have two main parts.
First, the Constitution requires that all judicial remedies by ‘effective’. To be effective, an order must uphold and enhance the values underlying and the rights entrenched in the Constitution. To satisfy this requirement, the default position is that unconstitutional conduct must be set aside in its entirety, from inception. In this case, this would include the actions taken by the Minister under the unconstitutional provisions of IPID, relating to the suspension of Mr. McBride as Executive Director of IPID.
Second, the HSF will argue that pending Parliament’s correction of the defects of the IPID Act, the suspension and removal provisions pertaining to the head of the Hawks should apply to the Executive Director of IPID. Interim measures of this nature are essential for IPID’s effective and efficient functioning. Only with measures of this nature will the public have confidence in the independence of IPID.
The HSF anticipates that the Constitutional Court will find confirm the findings and the order of the High Court.
For media enquiries:
Francis Antonie, Director: francis@hsf.org.za, 083 408 7043
Matthew Kruger, Legal Researcher: matthew@hsf.org, 072 861 2776
Kimera Chetty, Legal Researcher: kimera@hsf.org.za, 011 482 2872
