IPID: HSF appeals High Court Order

This will determine constitutionality and lawfulness of interpretation of IPID Act sanctioned by court

HSF appeals High Court Order sanctioning unconstitutional renewal process for the Head of IPID

15 March 2021

The Helen Suzman Foundation (“HSF”) approached the Supreme Court of Appeal (“SCA”) to appeal an order made on 12 February 2019 by the Pretoria High Court. The appeal was heard on 6 November 2020. However, the hearing was adjourned and will resume today – 15 March 2021.

The focus of the appeal is the Pretoria High Court sanctioning an agreement (“the agreement”) between the Independent Police Investigative Directorate (“IPID”), Mr Robert McBride as the then Executive Director of IPID, the Minister of Police (“the Minister”) and the Portfolio Committee on Police.

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.  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.  

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. 

The High Court order thus gives credence 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 interpretation of the IPID Act contained in the agreement.

Following the High Court order, and in accordance with the process sanctioned therein, the Minister and the Portfolio Committee took the decision not to renew Mr. McBride’s term of office.

At the hearing of 6 November 2020, it was questioned whether the appeal had become moot since Mr. McBride had subsequently been appointed elsewhere. The matter was stood down to allow Mr. McBride to file an affidavit explaining his position. Mr. McBride has now filed an affidavit, in which he has assured the SCA that he “will extend himself in whatever manner appropriate to ensure the effectiveness of [the Court’s] order”.

In any event, the HSF contends that the matter is not moot since the appeal raises serious issues of constitutional import. The appeal will determine the fundamental question of the constitutionality and lawfulness of the interpretation of the IPID Act sanctioned in the High Court order and the constitutionality of the process by which that order was granted. The legal conclusions reached by the SCA 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 Heads of Argument can be found here.

Issued by Catherine Kruyer on behalf of HSF, 15 March 2021