As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
This week a Parliamentary Committee endorsed the appointment of Robert McBride as the new head of the Independent Police Investigate Directorate (IPID). There was a predictable outcry from opposition parties. The DA even threatened to challenge McBride’s appointment in court. But a legal challenge to McBride’s appointment will almost certainly fail.
The South African Police Service (SAPS) is morphing back into a violent, sometimes murderous, and seemingly lawless force that poses a grave danger to ordinary South Africans.
IPID – formed to investigate allegations of police criminality and lawlessness and to enhance accountability and transparency by the SAPS – has so far been unable to arrest the increasing lawlessness within the SAPS.
IPID has a legal duty to investigate a wide range of criminal offences allegedly perpetrated by members of the police, including murder, culpable homicide, rape, torture, assault and corruption.
After an investigation the head of IPID must refer criminal offences revealed as a result of an investigation, to the National Prosecuting Authority for criminal prosecution. The head of IPID must also refer complaints regarding disciplinary matters to the National Commissioner and where appropriate, the relevant Provincial Commissioner.
It’s 2012/13 Annual Report indicates that in the year under review IPID investigated 6,728 complaints against members of the police, including 275 cases of deaths in police custody, 431 cases of deaths as a result of police action, 141 cases of rape by police officers and 50 cases of torture.
During the year 545 cases were referred to the NPA for criminal prosecution after completion of the IPID investigations, 384 of these being for assault. A total of 57 criminal convictions were secured, 27 for deaths as a result of police action, 11 for assaults, and two for corruption. This means that far less than 10% of complaints were referred to the NPA for prosecution and that less than 10% of these referrals ended in successful prosecutions.
Although some cases may still have been pending, the figures suggest that of the almost 7,000 complaints investigated less than 100 had ended up in conviction.
In the year under review IPID also made recommendations that disciplinary action be taken against 1,040 members of the SAPS and the Metro Police. However, in the year, only 84 disciplinary convictions were secured, 28 for assault, 14 for misconduct, and 13 for rape. In only 20 of these cases were police officers dismissed from the SAPS.
Even assuming that some disciplinary cases were continuing after the end of the year under review, the figures suggest that IPID has had an extremely modest impact on weeding out “bad apples” within the Police.
The question is whether – in the absence of strong leadership from the top of SAPS and from the political leadership – IPID will ever be able to halt the culture of impunity within the police service.
The lack of strong political leadership is perhaps not the only reason for IPID’s lack of success. IPID has been without a head for more than a year. Moreover, its previous head, Francois Beukman, lacked the political influence, general standing and clout to have made a decisive difference.
Beukman used to be a National Party apparatchik before morphing seamlessly into an ANC apparatchik after the merger between the ANC and the New National Party. Based on my own interactions with him at University, I would not have thought him a sufficiently principled person with the requisite reliability and trustworthiness to lead an organisation like IPID.
Which brings us to the appointment of Robert McBride as the head of IPID. Judging by newspaper reports, McBride is thin-skinned and has an abrasive personality. He has also faced several allegations of involvement in criminal activity, but do not have any conviction for any of these.
Like Beukman, the previous head of IPID, he is also very close to the governing party, which casts doubt on his ability to make necessary decisions that might embarrass the government of the day. For these reasons, I believe that the appointment is not the best possible appointment that could have been made.
I might, of course, be proven wrong about the wisdom of the appointment. McBride’s abrasiveness and his obvious political clout may help to embolden IPID to “go after” the ever-increasing number of so called rogue cops within the SAPS. IPID surely needs a strong-willed leader to improve its performance and to help end the culture of impunity in the SAPS.
But my guess is that many people who are horrified by McBride’s appointment, are motivated by other, completely irrelevant, considerations.
People who believe in the moral equivalence of acts committed in pursuit of the struggle against Apartheid and acts committed to defend and protect the minority Apartheid regime, will invariably point out that McBride was involved in the planting of a bomb outside Magoo’s Bar, which killed three people and injured 69 others.
However, I would argue that such a belief in the moral equivalence between those who fought Apartheid and those who enforced it is itself morally despicable. One side was fighting injustice. The other side was fighting to protect injustice.
Judging McBride for his involvement in the Magoo’s Bar incident is a bit like judging Winston Churchill for his involvement in the bombing of Dresden or judging Harry Truman for ordering the bombing of Hiroshima and Nagasaki. (Although it must be said that this analogy is unflattering to McBride – in the latter two examples, hundreds of thousands of people were killed, while only three people were killed in the Magoo’s Bar bomb.)
Unless you believe the Apartheid state was a legitimate state and that any illegal acts of resistance against it was illegitimate, you cannot judge McBride for his involvement in this case. In any event, like many others, McBride received amnesty from the Truth and Reconciliation Commission for his actions, which wiped the slate clean.
The question remains whether the appointment could be set aside by a court of law. I suspect that it would be impossible to convince any court to do so.
In terms of the IPID Act the Minister must nominate a “suitably qualified person” for appointment to head IPID. The relevant Parliamentary Committee must confirm or reject such a nomination and if he is confirmed the President must appoint him.
Unlike the National Prosecuting Authority Act, which requires the National Director of Public Prosecutions to have a legal degree and to be “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity,” the IPID Act is silent on what would constitute a “suitably qualified person”. This means that the IPID legislation (rightly or wrongly) provides a wide political discretion to the Minister for the appointment of the head of IPID.
The appointment could be attacked on the basis of irrationality. But as the Constitutional Court has stated many times, a decision is not irrational merely because it is one with which the court does not agree. Neither would a decision be irrational because it happens to be an unwise decision. More would be required.
In the Simelane judgment the court found that given the need to appoint a fit and proper person with integrity and given the findings of the Ginwala Inquiry against Simelane, the president had a duty at least had to look into the allegations against the appointee before appointing him.
In McBride’s case there was a far wider discretion while the Minister claims to have followed a far more thorough process before nominating McBride for the post. After all, the Minister of Police indicated that a shortlisting process as well as an interviewing process took place to select the preferred candidate.
To convince a court of the irrationality of the decision to appoint McBride as the head of IPID would therefore be very difficult, if not impossible. Any party who approaches the court with such a request would therefore almost certainly be wasting their money.BACK TO TOP