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Pretoria - Independent Police Investigative Directorate (Ipid) head Robert McBride could be back in his office "tomorrow", without ever answering to the grave charges of misconduct against him, counsel for the police minister has argued in the High Court in Pretoria.
McBride wants the court to declare the sections of the Ipid Act which gives the police minister the power to suspend, discipline and remove the head of Ipid from office, unconstitutional.
He further wants the court to set aside as unlawful Police Minister Nathi Nhleko's decision to suspend and subject him to disciplinary proceedings.
Nhleko suspended McBride in March, just over a year after appointing him as head of Ipid and ordered him to face charges of misconduct at a disciplinary hearing.
He was accused of altering an Ipid report that implicated former Hawks boss Anwa Dramat and Gauteng Hawks boss Shadrack Sibiya in the illegal rendition of Zimbabwean nationals wanted for murdering a policeman in Zimbabwe.
At least one of the men has died since the rendition.
McBride maintained the minister's powers to act against him undermined the constitutionally protected independence of Ipid and that Parliament should oversee the process.
His disciplinary hearing has been stayed by the Labour Court pending the outcome of his constitutional challenge.
Temporary precautionary measure
William Mokhari SC, for the police minister, argued that McBride had made no case to have his suspension set aside, as the minister had the power to suspend him. McBride had also withdrawn his allegations that the minister acted in bad faith and interfered politically with Ipid.
He pointed out that McBride had not been suspended without pay, but that his suspension was a temporary precautionary measure pending the outcome of his disciplinary hearing.
There was also nothing unconstitutional about the decision to subject McBride to disciplinary proceedings, he added.
Mokhari's junior, Tembeka Ngcukaitobi, argued that the remedy sought by McBride would allow him to evade his disciplinary hearing.
He said the court should be slow to adopt an approach which would stifle the executive's ability to do the job the law says they must do, adding that there was no principle in international law which required Parliament to remove the head of a police oversight body.
"...Even though he conceded the Minister had the right to suspend him, he wants that decision set aside.
"In other words, McBride walks out of court with a clean slate, despite the fact that there's a strong prima facie case against
him," he said.
"...If you know he's prima facie guilty of these charges, why should he be allowed to walk away?
'He will walk back into his job'
"If the court makes the order, setting aside the institution of the disciplinary proceedings, he will walk back into his job and
resume full responsibility for Ipid.
"The suspension was taken on legitimate grounds ... The Minister had the powers to do so. ...He acts within the law and acts for legitimate reasons. When you set aside the Act under which he took it, what will the public think?" Ngcukaitobi said.
Judge Kayeeza Kathree-Setiloane pointed out that if the Act was unconstitutional, it was unconstitutional and the court should not worry about the public.
Ngcukaitobi argued that even if the Act was unconstitutional, the court could declare the decisions invalid without setting them aside.
"The outcome will be that McBride will walk back into his job tomorrow. That will not be just... There are strong public
interest reasons not to set it aside," he said.
Ngcukaitobi said McBride had not explained how Parliament was to take over the function of the disciplinary hearing. He submitted that the charges did not relate to McBride's performance of his functions as head of Ipid as argued by McBride's advocate Steven Budlender, SC.
"Charge 1 is improper instructions given to alter reports of Ipid. Those reports related to the renditions. The concern about the renditions was that Dramat and Sibiya were hiding the facts.
"We know four people were rendered and at least one of them was subsequently killed.
"If it's true that McBride tried to hide the true facts or tried to protect senior police officials ... if he tried to shield them from the law and lied about the facts, it is of intense public interest.
"This has has nothing to do with McBride doing his job.
"This is acting contrary to the Ipid Act and the interests of Ipid when he's protecting senior policemen from the consequences
of their actions," he said.
'He violated the Ipid Act'
Ngcukaitobi pointed out that other charges related to McBride instructing his officials "to interfere with the National Prosecuting Authority", withholding a third report and lying to the Minister by saying it did not exist.
"...He was trying to protect Sibiya and Dramat. He violated the Ipid Act and attempted to defeat the ends of justice. This is
conduct which is in conflict with the Constitution.
"After litigation began, the Minister discovered there was R500 000 taken from Ipid's accounts to McBride's lawyers to fight the decision to suspend him. ...There's a conflict of interest because he cannot use public moneys to fight his own personal battle.
"The court should not grant an order which is aimed at insulating himself from answering to these grave charges," he argued.
Budlender said in reply that it was simply not so that McBride was trying to avoid answering the allegations against him.
"He denies (the charges) have any basis, but he accepts they are serious.
"...It is not a case of my client trying to jump back into office and cause all sorts of mayhem.
"...He wants a proper process. The case is about whether the provisions of the Ipid Act are constitutional.
"...They refuse to accept that Ipid must be free from the political master. That proposition is untenable," he said.
Judge Kathree-Setiloane reserved judgment.
