OPINION

IPID: HSF to appeal to ConCourt

Decision by a political actor on such a renewal of term of office is constitutionally invalid

Helen Suzman Foundation appeals the settlement agreement relating to the process of renewal of the term of office of the head of IPID

The Helen Suzman Foundation (“HSF”) has filed an application with the Constitutional Court to appeal an order of the Pretoria High Court which on 12 February 2019 sanctioned an agreement (“the Agreement”) between the Independent Police Investigative Directorate (“IPID”), Mr Robert McBride as the Executive Director of IPID, the Minister of Police (“the Minister”) and the National Assembly’s Portfolio Committee on Police.

The Agreement authorises a process by which the Minister is permitted to make a “preliminary decision” not to renew the term of office of the Executive Director of IPID, which the Portfolio Committee then confirms or rejects. In terms of the Independent Police Investigative Directorate Act (“IPID Act”), the head of IPID serves for a term of five years, which is renewable for one additional term - without mentioning who is required to make a decision on such renewal.

However, 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 an executive of an independent institution, such as IPID, as this is incompatible with the requirements of adequate independence. A decision by a political actor on such a renewal (or non-renewal) is therefore constitutionally invalid and a court order which gives effect to a process requiring such a decision is unconstitutional.

This obviously has no bearing on the powers of the Portfolio Committee regarding the suspension or removal of the head of IPID, which are set forth in the IPID Act (as amended by a 2016 Constitutional Court judgment).

The order of court is suspended by operation of law as a result of HSF's leave to appeal application. Pending the conclusion of the leave to appeal application, the current renewal process endorsed by the High Court order should be placed on hold until a final determination by the Constitutional Court.

Statement issued by Francis Antonie, Director and Anton van Dalsen, Legal Counsellor, Helen Suzman Foundation, 26 February 2019