An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The National Police Commissioner Jackie Selebi has now stepped aside while the legal case against him takes its course. Some readers have asked me what would happen if the President wanted to remove him from office and he refused to go. Will we have a Billy Masetla situation where the President fires someone and that firing is then challenged in court?
The Constitution is silent on the firing of the National Police Commissioner. Section 207 of the Constitution merely states that the President, as the head of the national executive, must appoint the head of the police force.
But the South African Police Services Act details procedure for the appointment and dismissal of National and Provincial Police Commissioners and arguably provides more protection for the Commissioner than does similar legislation governing the head of the National Prosecuting Authority (perhaps because the former Act was adopted in 1995 when the National Party paranoia still reigned supreme and they wanted to prevent the President from “abusing” his power).
Section 8 of the South African Police Services Act states that if the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry consisting of a judge of the Supreme Court as chairperson, and two other suitable persons, to enquire into the circumstances that led to the loss of confidence, to then compile a report and make recommendations about the position of the Commissioner.
During the enquiry the Commissioner can be suspended on full pay (unlike the head of the NPA which is suspended without any pay!) and the Act provides the Commissioner with many safguards to ensure a fair enquiry takes place, including the right of the Commissioner to be legally represented and to cross examine witnesses.
Once the enquiry is completed, the panel can reccommend that no action be taken; or that the Commissioner concerned be transferred to another post or be employed additional to the fixed establishment; or his or her salary or rank or both his or her salary and rank be reduced; or he or she be removed from office; or any other appropriate steps including the postponement of any decision by the President for a period not exceeding 12 calendar months) be taken.
If the panel reccommends the removal of the Commissioner the President can then remove him or her from office. It is unclear whether the President can remove the Commissioner from office if the panel does not reccommend such a removal. I would suspect that he could, but that the political fall-out resulting from such a move might prevent the President from doing this.
Interestingly, what is required for the removal is not necessarily incompetence or incapacity or any other objective criteria as are prescribed in terms of the National Prosecuting Authority Act. All that is required is for the cabinet to have lost the confidence of the Commissioner and for a the panel to look into the circumstances that led to that loss of confidence.
I assume the Act was written in this way to take cognisance of the fact that the Police Commissioner is politically accountable to the government and is in effect a political appointee because crime fighting is a matter of grave political concern.
At the same time the act tries to prevent the President from acting in a hasty manner or to let bad faith considerations come into the firing of the police chief. Say the Scorpions are abolished and a new police chief allows an investigation into the alleged criminal acts of a new President or one of his cabinet ministers and the President then wants to fire the Police Chief (not that this would ever happen in South Africa of course!), then the act provides for a cooling down period and would provide some safguards for the Commissioner.
But in the end the President would seem to have the power to dismiss his police chief for any reason possible – as long as he or she faces the political consequences of such a move. If a new police chief is appointed and if the SCorpions are incorporated into the police, this leaves the Scorpions and their new boss – the Commissioner – open to serious political pressure.
It does not seem likle an ideal situation and it would therefore be better if the Scorpions remains with the NPA to ensure that political sensitive investigations are carried out without political interference. Alas the ANC conference decided otherwise, so once incorporatedinto the police this might spell the end of such investigations. Unless the new Police Chief has a very strong back bone indeed.
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