IPID Executive Director’s Term of Office: renewal or non-renewal process

Meeting report

The Chairperson outlined that the matter was referred to the Committee by the Speaker of the National Assembly in the Announcements, Tablings and Committees (ATC) of 6 February 2019. Today the Committee would be presented with a draft programme and process to deal with the matter. This is not the first time the Committee is dealing with a matter of public importance – during 2015, for five months, the Committee dealt with the Rule 201 Inquiry into the former National Commissioner and other high-ranking SA Police Service (SAPS) officers.

To restate, the Speaker of the National Assembly, tabled, on 6 February 2019, a letter from the Minister of Police, dated 5 February 2019, regarding the contract of employment of the Executive Director of the Independent Police Investigative Directorate (IPID). This referral was tabled in the Committee on 12 February 2019 and distributed to Members.

Linked to this is a court application in the North Gauteng High Court brought by the Executive Director of IPID where the Portfolio Committee on Police was cited as the second respondent. During the recess, the Committee also submitted an affidavit with regard to the matter. The parties came to an agreement and this is contained in the draft order. This draft order impacts the referral from the Speaker and the programme of the Committee. The Committee must deal with the matter to subscribe to the court order – this is very important.

The Committee has decided to amend its programme – next week Tuesday, 19 February 2019,  the scheduled meeting will go ahead for the Committee to consider amendments made by the National Council of Provinces (NCOP) to the Critical Infrastructure Protection Bill and look at the Private Member’s Bill of Adv A Alberts (FF+). Instead of meeting on Wednesday, 20 February 2019, the Committee will meet on Friday, 22 February 2019. The Committee will also make use of the following Tuesday and Wednesday (26 and 27 February 2019). There is also the possibility of sitting on Monday 25 February 2019 depending on progress made.

The Chairperson emphasised the process recommended must be substantially fair in its merits and how the matter is dealt with.

Mr J Maake (ANC) requested the Chairperson brief the Committee on the contents of the draft order.

The Chairperson read through the draft order in the matter between Robert McBride (first applicant), IPID (second applicant) and Minister of Police (first respondent) and Portfolio Committee on Police (second respondent). By agreement between the parties, the following order is made: it is declared the decision taken by the first respondent not to renew the appointment of the first applicant as Executive Director of the Independent Police Investigative Directorate is a preliminary decision that must still be confirmed or rejected by the second respondent. It is recorded that the second respondent intends to take a decision regarding renewal of the first applicant’s appointment on or by 28 February 2019. The matter is postponed until 26 February 2019 and for that purpose, the second respondent will report, on affidavit, on its process in taking a decision regarding the first applicant’s appointment. All parties will be entitled to make submissions to the court on whether any further just and equitable order should be granted, including, but not limited to, if the second respondent should be given a further period to make a decision on the renewal of the first applicant’s appointment and whether the first applicant’s term of office is to be extended pending the second respondent’s decision. There is no order in terms of cost.

The Chairperson said he wrote to the Minister last night requesting him to provide the Committee with reasons for his decision. The deadline to do so is 17h00, Monday, 18 February 2019.  These reasons would be submitted to Mr McBride to give him the opportunity to respond – the deadline for this response to reach the Committee is 17h00, Wednesday, 20 February 2019.

Corruption Watch and Helen Suzman Foundation have joined the case as friends of the court. The Committee thought it prudent to write to these parties today to allow them to bring any information to the Committee for consideration. The deadline for this response to reach the Committee is 17h00, Wednesday, 20 February 2019.

The Committee is under huge time pressure but must be fair to the parties and give ample time within the timeframe available.

On Thursday, 21 February 2019, Members of the Committee will receive all the necessary documentation in preparation for deliberation. On Friday, 22 February 2019, Members will consider the matter. If need be, the Committee could call relevant parties to appear. The Committee will then have to submit an affidavit to the High Court on the progress it has made – this will include everything the Committee has practically done from today. 

Deliberations of the Committee are scheduled to carry on on Tuesday, 26 February 2019. The Committee will have to produce and adopt a report on the matter for tabling. The deadline is 28 February 2019 although it is possible that the Committee could conclude its work earlier. There is the possibility for the Committee to sit on Monday, 25 February 2019, if more time or submissions is required – this would depend on progress made.

Discussion

Ms D Kohler Barnard (DA) found out quite late that the Committee was also involved in the court case – she requested to see the submission made from the Committee.

The Chairperson said he would ensure Members see the submission. The Chairperson acted in terms of the National Assembly Rules to act on behalf and in the interests of the Committee if the Committee is not sitting.

Ms Kohler Barnard was not suggesting the Chairperson acted wrongly – she just wanted to see what the submission said. It was said earlier the Committee wants to receive the reasons from the Minister as to “why he made the decision he did” – she felt the Minister had no right to make this decision. The Minister then tried to backtrack in his second letter by sending it directly to the Speaker of the National Assembly, again ignoring the Committee. She was concerned the Minister may have leaned on Members of the Committee to do what he wants when this is not how the Committee operates. She was pleased with the process going forward as it is very balanced. The Minister however had absolutely no right to decide he would not renew the contract. She had not see anything this arrogant in quite some time possibly since the Minister was last the National Commissioner. This must be taken into consideration. What happens if other entities wish to present information to the Committee?

The Chairperson said Rule 167 applies so other submissions could be considered. The purpose of the meeting today is to get the process together and approved by Members.

Ms Z Mbhele (DA) agreed with the process outlined which is considered and balanced – the key task is to get the reasons from the Minister to assess cogency, rationality and substantiveness. He flagged that the court order does make provision, subject to the point of proceedings as at 26 February 2019, there is the possibility of a court-granted extension should the Committee require further time. The Committee should not be too hasty in seeking to meet the 28 February 2019 deadline.

The Chairperson reiterated National Assembly Rule 167 is guiding processes of the Committee in this regard. It would be natural that the Committee collate all relevant and required documentation and then decide who to call.

Ms Kohler Barnard asked why the IPID Executive Director’s contract ending was not on the Committee’s programme – she felt the Committee was blindsided. The Committee runs a careful schedule where it knows what and when it needs to do something yet this matter has never be raised. She felt the Committee was caught with its pants down.  

Ms P Mmola (ANC) reminded Members it was not the time to make judgement calls today. The purpose of the meeting today is to discuss matters of process. The Committee discussed the Executive Director’s contract at its last meeting of 2018 where Members considered the Committee’s Legacy Report. At the time the Committee was unsure of when exactly the contract expires.

The Chairperson pointed out the discussion of the Committee is captured in its Legacy Report with regard to the IPID Executive Director contract expiration.

Mr L Ramatlakane (ANC) also confirmed the discussion of the Committee on the Legacy Report regarding the IPID Executive Director contract expiration. He appealed for Members to cross the bridge when it gets there. For now, the Committee must accept the process suggested to comply with the court instruction and deadline.

Ms A Molebatsi (ANC) pleaded for Members to relax and not get excited – Members should wait until proceedings unfolded.

Mr Maake found himself questioning who interviews candidates for the position of Executive Director of IPID. Amendments to the IPID Amendment Bill dealt only with the court order. Currently the Act says the Committee does not conduct these interviews. It felt as if the Committee is being blamed for the current situation when it in fact is not the baby of the Committee.

The Committee adopted the proposed programme on how to move forward with the matter at hand.

The meeting was adjourned.