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This policy paper has been written following the judgment of the Constitutional Court on 6 September 2016 in the matter of McBride v Minister of Police and Another.2 The case involved an application by Robert McBride, the Executive Director of the Independent Police Investigative Directorate (IPID), to have his suspension and disciplinary action against him by the Minister of Police set aside on the basis of constitutional invalidity. The case was first heard in the Gauteng Division of the High Court. The High Court issued judgment in McBride’s favour in December 2015.3 Owing to the fact that the High Court found certain legislative provisions to be unconstitutional, the case was referred to the Constitutional Court for ‘confirmation’.4 The case is above all concerned with the independence of the IPID in view of the fact that section 206(6) of the Constitution requires that the IPID be independent.
The Constitutional Court judgment declared certain sections of the Independent Police Investigative Directorate Act (‘the IPID Act’), Public Service Act and the IPID Regulations to be invalid ‘to the extent that they authorise the Minister of Police to suspend, take any disciplinary steps pursuant to suspension, or remove from office the Executive Director of the Independent Police Investigative Directorate’. The Constitutional Court instructed that Parliament ‘cure the defects in the legislation’ within 24 months (i.e. by 5 September 2018).
The judgment makes extensive reference to two previous Constitutional Court judgments pertaining to the independence of the Directorate for Priority Crime Investigation (DPCI). This policy paper is intended to inform debate, by parliamentarians and others, about the legislative amendments that are required. The policy paper discusses the following:
- The general purpose of independent civilian oversight bodies (ICOBs);
- The relevance of independence to ICOBs;
- The history of the Independent Complaints Directorate (ICD) and the IPID;
- Key differences between the ICD and the IPID;
- The debate about the IPID’s independence prior to the McBride judgment;
- Constraints on the IPID’s independence; and
- Key aspects of the High Court and Constitutional Court judgments.
In the conclusion, the policy paper raises questions about the comparison between the DPCI and the IPID in relation to the issue of ‘an adequate level of structural and operational autonomy’ that is foregrounded in the Constitutional Court Glenister judgment on the DPCI and the McBride judgment on the IPID.5 The paper notes that, unlike the DPCI, the IPID is institutionally separate from the South African Police Service (SAPS) and, therefore, is ‘structurally’ more independent. However, as discussed in the section on constraints on the IPID’s independence, the IPID does not enjoy a high level of ‘operational autonomy’ from the SAPS. The independence of the IPID Executive Director is therefore fundamental to the ability of the IPID to assert itself as an independent body.