IPID Executive Director term of office: deliberations day 1

Meeting report

The Chairperson reiterated steps taken by the Committee up until this point – the Committee wrote to the Minister of Police and the Executive Director of the Independent Police Investigative Directorate (IPID), Mr Robert McBride, to provide the Committee with any other relevant information to assist the Committee’s deliberations. The information was made available electronically to Members over the weekend. He asked that the Committee Secretariat ensure all Members received the physical copies. At its previous meeting, the Committee resolved to request legal opinion on the matter of receiving oral representations from the relevant parties. 

In terms of process, it was suggested each Member be allocated 15 minutes to provide comments on the two main submissions of the Minister and Executive Director. In terms of the other topics, each Member will be allocated seven minutes to make input. The focus of the Committee will be on the salient matters before it to reach an informed decision.

Legal advice on oral submissions

Adv Denzil Potgieter, SC, Cape Bar, said he was briefed on Friday, 25 February 2019, to prepare a note on the matter of oral hearing. The memo prepared was done under time constraints given that the matter before the Committee is fairly urgent and the Committee itself faces some time constraints. The note is focused on the matter of oral hearing and focuses on the core principles – it is therefore not as long as a traditional legal opinion prepared by senior counsel.

He referred to litigation the Committee is engaged in – the Committee is cited as a second respondent in an application brought to the Pretoria High Court by Mr McBride who was the first applicant, IPID being the second applicant. The Minister is cited as the first respondent. The relief the applicant sought from the Court related to Mr McBride’s appointment as Executive Director. The matter came before Court on 12 February 2019 and the Court reached an order by agreement of the parties regulating further conduct of the matter. In terms of this order by agreement, the Committee is required to determine the matter concerning the renewal of the contact of Mr McBride by 28 February 2019, also the expiry date of the contact awarded to Mr McBride.

The Committee has decided on its process and programme to comply with the terms of the court order and the Committee has set aside time from 25 February 2019 to 28 February 2019 to finalise the matter. In terms of this process, the Committee has received the Minister’s reasons and Mr McBride was given these reasons and afforded an opportunity to respond and make further submissions regarding renewal of the contract. There are two friends of the court in the matter, Corruption Watch and the Helen Suzman Foundation, and they have also been requested to make written submissions to the Committee as part of the Committee’s process. This is the material before the Committee.

The question of an oral hearing arises, amongst other things, from the submission of Mr McBride. From the submission, Mr McBride says he has given his response to the Minister and made written responses on the basis on which the Committee should decide in favour of renewal of his contract. Mr McBride adds that if the Committee was inclined not to support of his contract then he should be given an oral hearing. This is a qualified request, as it were. It is not clear what he wants to present to the Committee orally should the Committee express its inclination.

Adv Potgieter said it is clear Mr McBride, who is the only one to request an oral hearing, is not claiming the right to be heard by the Committee but limits it to where the Committee not be inclined to renew his appointment. This is a novel but untenable and impracticable stance. It is not clear how the inclination of the Committee is to be gauged. It is somewhat impracticable to implement such suggestion. Would the Chairperson be required to take an intermittent poll on individual Members to determine the inclination of the Committee from time-to-time? This would be somewhat absurd if not irregular. Members are required to keep an open mind until they, if needs be, are required to cast a vote. The position adopted by Mr McBride is misguided and should not be acceded to. Whether the Committee calls for an oral hearing and to what extent, should be determined on objectionable and defendable grounds.

The Committee was drawn to National Assembly Rule 167 dealing with the general powers of the Committee leaving the Committee with discretion as to how to deal with its processes.  One of the discretionary powers is found in Rule 167 (c) and whether the Committee permits oral evidence, (d) conduct public hearings and (f) determine its own arrangements. It is clear the Committee has discretion to determine the process to be adopted in dealing with the present matter. It is trite that the Committee is obliged adopt a fair procedure. If the Committee’s process and decision amounts to administrative action, as defined in the current law, the Committee would be required to follow fair administrative procedure as contained in section 3 (2) of the Promotion of Administrative Justice Act (PAJA). Section 3 deals with provisions for procedurally fair administrative action affecting any person depending on the circumstances of each case. Section 3 (2) (b) contains mandatory, obligatory provisions which must be complied with by administrative decision makers – this includes giving the person affected by the action adequate notice of the nature and purpose of the proposed administrative action, reasonable opportunity to make representations and a clear statement of the administrative action. It is not in contention that the mandatory requirements have been complied with in this matter. PAJA goes further under section 3 (3) by outlining further discretionary powers, as it were, to be followed in the procedure of the decision maker – they are not mandatory but directory and discretionary provisions. This includes that an administrator may, by discretion, also give the affected person an opportunity to obtain assistance and legal representation in complex, serious cases, present and dispute information and arguments, appear in person. Section 3 (3) of PAJA gives discretionary power to the Committee as part of fair administrative procedure to allow the affected person to present arguments and appear in person.

It is clear that it is entirely in the discretion of the decision maker, the Committee in this instance, to allow the affected person to appear in person and present arguments i.e. an oral hearing.

The Committee was referred to a very well known court case where the matter of fair procedure was dealt with. This is cited from the decision of a local division of the High Court, under Justice Dennis Davis, in the matter of Nisec vs. Western Cape Provincial Tender Board. The judgement of Judge Davis refers to a decision in the old Transvaal provincial division where it is said “it is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are afforded to a litigant in a judicial trial. He need not be given an oral hearing...or allow the representation by an Attorney or counsel. He need not be given the opportunity to cross examine...is not entitled to discovery of documents. But on the other hand, and for this no authority is needed, a mere pretence of giving the person a hearing would not be compliant with the rule. What would follow is, firstly, that the person concerned be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representations. Secondly, he must be put in possession of such information which would render his right to make representations a real and not an illusory one”. It is clear from this, the requirement is that the person affected must be given a real opportunity to deal with any material, especially adverse, which might be taken into consideration when deciding on the matter.

Adv Potgieter referred the Committee to a very well known series in South African law, the Law of South Africa, where it is said it is not essential that the interested parties appear before the administrative tribunal or body in person, provided that they are given ample opportunity to make written submissions on their own behalf.

The last authority the Committee was referred to was an older decision of the Supreme Court of Appeal, previously called the Appellate Court, in 1954, which is still held in good authority. The decision said “the person or body giving the decision is not bound to hear the person affected orally...but is only bound to give him a fair opportunity of submitting any statements in his favour and of controverting any prejudicial allegations made against him...the exercise of demand of the opportunity to be heard does not therefore entail recourse to a court of law nor does it entail an inquiry at which witnesses are heard orally”.

The Committee must accordingly decide to what extent an oral hearing should be held with reference to the particular circumstances of the present matter. Neither the Minister nor the friends of the court have asked for a hearing. Mr McBride’s request for an oral hearing is qualified. All parties have submitted full and extensive written representations. It would serve no useful purpose to have an oral hearing where the parties simply regurgitate the matters they already extensively cover in their written submissions. The further step of having oral submissions can only be justified if it were to assist the Committee in deciding on complex, complicated and specified matters identified as so by the Committee.

A well known textbook on constitutional law was referred to where the authors say in unusually complex cases involving complex evidence or legal matters it might be justified to allow oral submissions to clarify such complex matters. Section 3 (a) of PAJA says the affected party may be given opportunity to obtain assistance in serious or complex cases. This is the type of situation where there has been inclination to resort to oral input, as it were.

If it appears during the Committee’s deliberations that there are specified complex matters which could be clarified through oral submissions and which would assist the Committee on the matter of renewal, it would be justifiable to conduct an oral hearing only in respect of such specified matters. Such a cause would be particularly prudent in the present matter where it is in the best interest of all of the affected parties as well as in the public interest for the matter to be finalised without any undue delay. Whether and to what extent oral submissions could be allowed could only be decided as the Committee’s process unfolds. Members have had adequate opportunity to consider the papers and possibly identify matters that would qualify as complex and complicated only clarified by means of oral input – this would be entirely in the discretion of the Committee.

Discussion

The Chairperson said it was clear in the presentation from counsel that there is discretion for the Committee to allow oral submissions in specific or complex cases. Going through matters today and topics of discussion circulated, the Committee can isolate such matters flagged for further written submissions from the parties or oral submissions. In terms of process, 12h00 tomorrow, Tuesday 26 February 2019, has been put down as a timeslot should there be a need for oral submission to clarify any complex matters.  Members are also able to request further written information as the process gets underway today.  Relevant parties are still welcomed to bring any additional documents or information they so wished to the attention of the Committee during the day before close of business. Matters of merit would be isolated for oral submission from the Minister or Executive Director.

Mr L Ramatlakane (ANC) appreciated the legal opinion which is helpful in moving the Committee forward. He agreed with the Chairperson’s proposal – this was already canvassed in some way at the Committee’s previous meeting to isolate specific matters for possible oral response.

Mr Z Mbhele (DA) thanked Adv Potgieter for the legal opinion. The proposal of the Chairperson was agreeable as it was in line with the Committee consensus to not pre-empt the outcome but to make reasonable and grounded decisions. The opinion described Mr McBride’s request for oral hearing as untenable, impracticable and misguided – his understanding was that this opinion is made on the basis that the request of Mr McBride is conditional or qualified. He asked if this was correct and further clarity on why the request for a conditional or qualified oral hearing is so deemed irrational.

Adv Potgieter made the point that the request is novel in light of the law that stands that one either has the right to an oral hearing or not. There are no conditional rights in the law. The authorities would be searched in vain because one would never find a case where the courts say one is able to park one’s right to an oral hearing until the wind starts turning against one. The right is either there or not. It is untenable because it would place the Committee in a difficult position in determining the inclination to not renew the contract – would the Chairperson have to poll Members at certain times to get an idea of the inclination? It is also impracticable. The Committee needs to decide on whether it will have an oral hearing on defensible and objective grounds as the Committee could land up in court or taken on review.  The Committee must act fairly and for this it is best processes are as simple and straightforward as possible to prevent processes being difficult to implement – this would be hard to justify in court.

Mr M Buthelezi (IFP) thought agreement was already reached at the Committee’s previous meeting that there would not be any oral presentations. What is the point of what the Committee is doing now? Would the previous decision have to be rescinded?

The Chairperson explained the Committee would not allow general oral presentation because of the volume of written information received. However if there are any specific complex matters Members need more clarity on, oral input would be considered – this would present itself during the course of deliberations today.

Mr Ramatlakane added the Committee did not take the decision to disallow oral input at its previous meeting. There was agreement there may be selected matters where the Committee may want the parties to make representations in person. Nothing would have to be rescinded. At this previous meeting, the Committee resolved to attain legal opinion to assist the Committee on the matter of oral submissions. 

The Chairperson agreed the legal opinion was key in the Committee taking a decision.

Mr Shaik Emam (NFP) agreed with the Committee process moving forward as proposed by the Chairperson. He asked if counsel would agree the applicant in the matter, i.e. Mr McBride, is already assuming the Committee would not extend his contract – this was the impression the Member had. He asked for counsel’s opinion of the purpose of requesting an oral hearing if it is already assumed the Committee would act against the applicant. If the Committee decided on this route, would it set a precedent that everyone would demand an extension to their employment contracts and go through this entire tedious process?

Adv Potgieter replied that it was not precedent setting – allowing oral input on specified and identified matters would prevent it being a general free-for-all where every time the Committee sits to take a decision, all and sundry will need to make submissions. The Committee would decide on whether oral input would assist as the Committee goes through the process and through the information on the circumstances of the case. Should the Committee use its discretion to allow oral input, it would be on specific grounds and focused grounds which would not tie the Committee down in future or set a precedent. He was not sure of Mr McBride’s views and it was not part of the legal opinion. However looking at the papers in the Pretoria High Court, Mr McBride is on record saying he does not think he has the right to have the contract extended i.e. he is not insisting but the complaint before the court is against the Minister to say the decision must be taken properly and by the proper institution with the authority to take this decision.

Mr J Maake (ANC) wanted to understand how someone can request oral submission should the Committee decide to not extend the contract – the decision to not extend the contract is the end of the matter. What would an oral submission help? Unless one wanted to swear at the Committee.

Adv Potgieter said the Committee has helpful and comprehensive input from the principle parties, and in the referral from the Speaker, the Committee is largely tasked with considering the recommendation of the Minister. The Committee is also assisted by the input from the friends of the court in terms of process and possible legislative changes to be made. The law requires that the Committee maintain an open mind. If there is a matter the Committee comes across which would genuinely be difficult for it to consider without oral input, the Committee must maintain an open mind to allow for such. In that case the oral input would be structured and limited to the matter and so avoid a free-for-all – this would also make it easier for the respondent and the Committee remains in control of its process.

Ms P Mmola (ANC) asked what could be said in an oral submission which would change the Committee’s decision to renew the contract or not. Extensive written submissions were already made so how could the oral submission assist in the decision made? 

The Chairperson pointed out the Committee has not yet deliberated on the documents. The process of this deliberation might present the need for further clarity on certain matters by the relevant parties. The Committee would keep an open mind therefore the relevant parties are still welcomed to submit information today.

Mr Buthelezi questioned the extent to which the Committee could comment on the legal opinion. It is simply an opinion as the Committee still needed to decide. The Committee is discussing the opinion as if the Advocate is instructing the Committee on what to do. The opinion highlights a few facts but says the Committee must make its own decision so the opinion should not be paid too much attention as if it is final.

The Chairperson said the opinion is very valuable. The process cannot be pre-empted and there might be certain complex matters where the Committee might decide to request the parties to further clarify in person. The Committee might also identify further documentation it might require today. These matters would be considered according to their merits.

Ms D Kohler Barnard (DA) asked if legally, the Committee could decide certain areas are completely off the table in terms of consideration. What can the Committee ignore legally? If the Committee decides oral submissions are needed to clarify certain points, is the Committee allow to call anyone? 

Adv Potgieter responded that there are contradictory versions and withdrawal of complaints for the Committee to consider. Complaints withdrawn should be taken off the table as it would be irregular to consider. Disputed factual matters might be parked for later consideration although it might well be that some disputed factual matters are unable to be resolved by the Committee as it is not a court of law. The Committee is only required to deal with the main and relevant matters and not to go into each one of the allegations and counter-allegations to come up with a finding – this is impossible especially given the demanding timetable the Committee faced.

Mr Shaik Emam asked about the original contract agreed to by both parties and the opinion of counsel about any conditions for the Committee to consider renewal or not. What would give rise to Mr McBride’s belief that he has the right to demand the contract be extended?

The Chairperson said these matters might be part of the material deliberations during the day.

Adv Potgieter agreed these were the kind of matters for the Committee to consider and if Mr McBride had a legitimate expectation. The Committee would have to apply its mind and do the best with the material before it. No one was expecting the Committee to come up with a court judgement. 

Ms Kohler Barnard agreed the Committee is best placed to take the decision on the renewal of the contract but there is a bizarre situation where the Minister wrote two letters – one informing Mr McBride he would not stay for a further term and another letter to the Speaker. It has a huge impact on the ANC Members when the Minister makes a decision and one cannot be seen to be standing against the Minister. This is a very difficult position the Committee has been put in by the premature action of the Minister. Does the Committee have any recourse against the action of the Minister? Or would the matters all come out when the case lands up in court on appeal?

Ms A Molebatsi (ANC) asked that Ms Kohler Barnard not talk for the ANC component and she is not the spokesperson.

Ms P Mmola (ANC) said the ANC Members are not controlled by the Minister – they know what is wrong and what is right. Ms Kohler Barnard must refrain from saying the ANC Members will act according to what the Minister said.

Mr Mbhele asked if there was an argument to be made that, because of the nature and mandate, IPID is not the run-of-the-mill administrative process falling within the parameters of the citations in the legal opinion. For example, at one point it was said the Hawks is just part of the SA Police Service (SAPS) and therefore all standard matters apply but the Glenister ruling said because of the nature and mandate of the Hawks and the supreme importance of ensuring independence as far as possible, statute reforms are required. This is also why certain sections were repealed in the IPID Act – IPID is not simply another government department where the Public Service Act (PSA) and other regulations apply blanketly. With certain boards and bodies, Parliament is responsible given the nature and mandate requiring differentiated handling. Could it be argued the matter at hand required this kind of customised handling with a deeper and more substantiated approach?  This would speak to the oral hearing matter given the seriousness of IPID, its mandate and agency.

Adv Potgeiter said the question of whether the matter was purely administrative is interesting and will surely be debated at some time. The legal opinion presented to the Committee speaks to erring on the side of caution. If the Committee applies its mind and uses its discretion along the lines outlined in the opinion, he believed it did not matter what label the decision or proceedings of the Committee carries. Even the Committee’s final right to decide on this matter will be debated at some point but for now the court order directs the Committee to do so – the Committee is acting on the court order.  There are as many legal opinions as there are lawyers. With due respect, the IPID Act is not an example of great legal clarity and might require some remedial action to make the requirements clearer.

Mr Ramatlakane responded that there is already agreement on the Chairperson’s suggestion on the route to take on only identifying specific matters for oral submission. The legal opinion has guided the Committee on the procedure. There should not be major debate on the legal opinion. The Chairperson needs to guide Members to get back on track with core discussions to allow Member’s to clear their views.

Mr Shaik Emam sought guidance from counsel on the Minister deciding not to renew the contract – by virtue of the fact that the Minister signs the contract, even though he/she is not the final decision maker on whether to extend the contract, which is another matter, and given that IPID is semi-independent with links to SAPS, is it then correct to say the Minister has nothing to do with extension of the contract? The Minister is an interested party by virtue of signing the contract – surely a direct employer has some right in deciding whether the employee is valuable to the institution or not and then advise the Committee accordingly. Guidance is required from counsel on whether the Committee has indeed got nothing to do with the extension of the contract given the points outlined.

Adv Potgieter said the role of the Minister is part of the grey area in the IPID legislation. The Minister certainly has a role to play in nominating a suitable candidate, the Executive Director reports to the Minister and there is interaction between the Minister and Executive Director. In terms of renewal, the Act is not clear. The renewal process is really up in the air which is why the Committee is faced with the current matter. Given court order and process before Pretoria High Court, it seems common cause that the Minister is not the final decision maker but the inclination is for the Committee to play this role – these are open ended questions.

The Chairperson said there is agreement on the process going forward thar the first prize is written submissions but 12h00 tomorrow would be set aside for oral input should there be a complex matter Members require clarity on. The Committee secretariat was asked to inform the parties that they should be on standby in this event.

In terms of topics, this is a proposal of themes to explore in the Committee’s deliberations pertaining to information received. Each Member would be given 15 minutes to address the Minister’s reasons and Mr McBride’s response. Thereafter Members will be given seven minutes to discuss:

IPID Act

Appointment letter

Performance agreements

Performance assessments

Auditor-General (AG) reports and notes

Committee Reports and briefings

IPID Amendment Act

Applications for posts

Security clearance

Public Service Commission (PSC) letter

Executive Authority-Accounting Officer governance framework

Executive Authority-Accounting Officer trust relationship

Public Protector investigation

Fit and proper person

Independence of IPID

Current political context (raised by Mr McBride)

The list was not exhaustive or limiting but intended to guide the Committee’s deliberations – Members were welcomed to add further topics. At its previous meeting, the Committee requested further information from the Minister and Mr McBride – the Minister supplied the performance agreements, performance contracts, applications for the head of the Directorate for Priority Crime and Investigation (DPCI) and Crime Intelligence – there was no submission of an application for the post of National Commissioner of Police. The Committee also received the PSC report – this report must be made available to Mr McBride for him to comment on in writing. The matter concerns the withdrawal of security clearance of an IPID employee. The Committee also requested information from the Minister on the governance framework with the Executive Authority but this was not received as yet. No substantive information was received from Mr McBride since Friday – there was one letter speaking to procedure.

This was confirmed by legal services – the letter contains the request of the right of reply should there be any negative information against Mr McBride under consideration by the Committee.

The Committee Secretariat was asked to ensure all additional information received is distributed to Members. There was confirmation that Members have received all documents. The only outstanding information was not the notes from the AG. Members would now be allocated 15 minutes each to make substantive comments on the primary submissions of the Minister and Mr McBride. Members should alert the Committee on any further documents required. 

Response from Minister Cele and Mr McBride

Ms Kohler Barnard, looking at both letters and the documents, absolutely agreed with the letter written by Mr P Mhlongo (EFF, Member of the Committee) that it was not up to the Minister to write these letters. It was clear before the matter even went to court that it is the job of the Committee to decide on the renewal. This is political pressure placed on the Committee and she was highly irate that the Minister simply usurped the position of the Committee. Mr McBride claims Mr Nkabinde withdrew all of his complaints. The Minister seems to base his case on these allegations. She felt the allegations should be pulled out of the entire exercise if Mr Nkibande indeed withdrew the complaints. The allegations were also investigated, as Mr McBride states. The PSC investigated the allegations and found them to be unsubstantiated and so they should be excised from the Committee’s deliberations. There are also the court papers on the link between Mr Nkabinde and KGB over the years. In the court the Judge described the presentations of Mr Nkabinde as dishonest and unreliable. The Committee is not a court or investigators – the investigation has been done and the courts have declared. She found it very odd that these claims and allegations, investigated and withdrawn, have now been presented to the Public Protector, who has not said she is investigation but simply says she has received the complaint. There is no big Public Protector investigation. Once the Public Protector sees that it has already been investigated by the PSC, she would say it is a done deal. This is not for the Committee to say.

Ms Kohler Barnard felt as though she was sitting in the same movie – with the Zimbabwe rendition and Gen. Booysen matter, all top structure were gotten rid of. The Committee is now going through the same scenario which has started since the suspension of Phahlane and co. It may have something to do with the enormous amount of money involved. It is the job of the Committee to decide on renewal of the contract and not the Minister – the letter was sent to the Committee almost as a threat for it do what the Minister wants. Another Minister producing another fire pool movie to explain their actions is not what it is required. The Committee has been through all of this nonsense before.

Looking at the number of arrests made by IPID, systems in place and the way the structure now works in producing successes, this explains why the entity is now coming under such attack by the Minister and others. When Mr McBride and co were removed illegally, it was the Minister’s job to put in place an acting Head – the individual selected was not a civilian but someone from the Crime Intelligence environment under whom IPID was almost destroyed. The Minister was not quite the uninvolved person some would like to believe he is. Putting in someone from Crime Intelligence, under whom IPID was almost decimated to save SAPS members, was one of the most horrendous moments the Member experienced while she was at Parliament. Multi-million Rand corruption cases are being unearthed in SAPS by IPID – this is most inconvenient for some people and now they want Mr McBride out.

Mr Maake noted that if there were letters from Mr McBride to the Minister, it would mean the Minister was responding to questions posed by the Executive Director – this is different to the Minister writing a letter out of the blue. It is important to put the correspondence into perspective from time-to-time. He agreed the letter from Mr Nkabinde might be irrelevant. The main matter seems to be the break in trust between the Minister and Mr McBride – the existence of such situation means the two people cannot work together. This is important. The duty of public representatives is to ensure departments of government function correctly and optimally. A situation where the department is not functioning optimally must be corrected regardless of the facts. Emphasis is on the smooth running of government and departments so that service delivery was not affected. People cannot be forced to work together. If this is the main matter, it might save the Committee from going through all the information to see what the sides are saying.

The Chairperson flagged two further applicable documents requested by Members – this included correspondence on the status of the contract.  

Mr Shaik Emam said it is clear there are submissions from both Mr McBride and the Minister and it is clear there are serious challenges in working relationships not only between the Minister and Mr McBride but also between Mr McBride and IPID. The contract makes no provision for an extension whatsoever but is explicit on the start date and end date. It would appear from Mr McBride’s submission that he accepts the contract is coming to an end, that it may not be extended and that he does not have a right to demand extension. By virtue of IPID not being entirely independent, the Minister makes the nomination of the Executive Director, the Minister signs the contract and the Executive Director reports to the Minister therefore the Minister is an interested party. The bone of contention is that the Minister wrote to Mr McBride informing him of non-renewal of the contract. The Minister did not need to inform Mr McBride of this.

Mr Shaik Emam made the example of a lease agreement where one could extend the agreement provided the leaser is in agreement. Currently the country is being run on allegations and not convictions – those against whom allegations were made were doomed irrespective of whether the allegations were true or not. Whether the allegations were true or not, by virtue of Mr McBride remaining in his position, it would have an effect. If the Minister kept quiet and did not inform Mr McBride that the contract would not be extended before the time, Mr McBride would have to submit a new application. Mr McBride says he will not get an independent objective process but he still insists on having such process. This exercise is a waste of time and taxpayers money. It will also delay matters when IPID has extensive list of matters to deal with.

Mr Shaik Emam thought the matter at hand is simple because the contract makes no provision for an extension. This could set precedent where every employee can request an extension of contract and go through such an entire process – people could not be stopped from insisting on this. There is no obligation on the Minister to inform the incumbent that the contract would not be renewed. IPID is not entirely independent from SAPS – the Minister makes the Executive Director appointment, signs the contract of employment and the Executive Director reports to the Minister. Given this, why should the Minister have little or nothing to do with deciding whether to renew the contract or not? The process which should have unfolded is the Committee initiating processes for appointment of a new Executive Director and for which Mr McBride would be within his rights to apply for.

Before going into substance, the Committee needs to look at procedure – the process the Committee wants to take forward is futile. The Committee should conclude on the basis that Mr McBride be given an opportunity to apply for the position of IPID Executive Director again as any other South African could too – Mr McBride would then be judged against the performance of other applicants objectively. 

Mr Buthelezi was clear on the fact that the contract of Mr McBride is coming to an end and there is no obligation to extend it. The Minister, by virtue of his letter, has placed the Committee in this position as it created a challenge in dealing with this matter. Mr McBride is justified to fear the process given the Minister’s letter. Having gone through the Minister’s reasons and Mr McBride’s response, the Member concluded Mr McBride’s response to the Minister’s letter is satisfactory unless there is countering information. The only problem is the trust deficit between the two – this is plain for all to see and could pose problems in the working relationship going forward. This should however not compromise Mr McBride because the Committee should base its decision on the performance of Mr McBride.

Ms Mabija said the Members respect law therefore the Committee is doing as the court indicated it must. The Committee is doing the honourable and right thing. The honourable and right thing is to let the contract of Mr McBride end on 28 February 2019. If Mr McBride is still interested in the post, he should apply for it again. The mandate of IPID must go on – Mr McBride is not the first to lead IPID. Other Executive Directors have come and go as will happen in future. The leader of IPID must be disciplined by the party he belongs to whether it be the ANC or DA – the Committee is now drinking juices and wasting time. Mr McBride knows he is not fit to continue in his position and he should be disciplined for this fruitless exercise. There is a saying in Venda that one when knows one is wrong one becomes jittery – this is happening with Mr McBride. The Committee knows this decision to make – this is never renewing the contract otherwise a very bad precedent will be set  where everyone employed on contract will have the opportunity to debate whether the contract should be renewed or not. The Committee cannot work like this – the Committee worked for the masses of SA and not for individuals.

Ms Mmola said Mr McBride reports to the Minister – if she was the Minister, she would not have given Mr McBride reasons for not renewing the contract and simply allow it to expire as it states on 28 February 2019. If Mr McBride is still interested in the position, when it is advertised, he could reapply. She did not see the withdrawal letter from Mr Nkabinde. Mr Phahlane is like Mr Mdluli now – sitting at home for two years while nothing happened. IPID told the Committee it had proof of Phahlane but when the matter went to court all the cases were withdrawn. Mr McBride also said he was going to arrest 16 Lieutenant Generals but this has not happened. Mr McBride is not the only capable person – other people are capable of leading IPID. Mr McBride’s contract should expire and the Minister should advertise the position – the Committee is now wasting time. Why is there talk of renewal when the contract clearly stated it would come to an end on 28 February 2019? What is Mr McBride fighting for? The contract should not be withdrawn. Today is Monday and Members are supposed to be in their constituencies working. On 7 May 2018 the contract of Members of Parliament are expiring – are Members also expected to force renewal of their contracts?

Mr Ramatlakane noted no information was supplied about the security clearance except the note that Mr McBride did not have security clearance. Looking at the annexures of the submissions requested, he noted Mr McBride ticked he does not have secret and top secret clearance – for absolute clarity, the Committee needs to know the security clearance status of Mr McBride. This information could be provided by the State Security Agency (SSA) if not by SAPS or Mr McBride himself.  Another outstanding matter is information relating to good governance/accountability as alluded to by the Minister in his submission. The submission by Mr McBride says the allegations of Mr Nkabinde has fallen off the table because of agreement reach by the two parties and complaints being withdrawn in lieu of concession that charges are dropped and the referral letter is acceded to. Mr McBride says this agreement was reached in September 2018 but Mr Nkabinde says, in his letter to the Chairperson, that he still waiting on feedback regarding complaints lodged with the Committee. In light of this, there is no agreement that the Nkabinde matter can be taken off the table. The Committee should request that Mr Nkabinde confirm that he has withdrawn his complaints.  This is because there is a strong view that the allegations should be taken off the table because it was said the allegations have been withdrawn. The Committee must satisfy itself that the matter no longer exists before it is taken off the table. It would only be fair that the Committee hear directly from Mr Nkabinde on a matter affecting him personally.

The undisputed fact is that there is a fixed- term contact of employment that started in 2014 and is due to expire on 28 February 2019.  The contract is signed between the former Minister of Police, Mr Nathi Mthethwa, and Mr McBride so there is no dispute that this expiring contract exists. The matter is not about the removal of Mr McBride but about an expiring contract. There is no legal right to automatic extension or renewal of a contract – this does not exist. There are many Directors-General (DGs) in government working on fixed term contacts which expire so there is a generally accepted practice on the matter. If a contract expires, the logical conclusion is that this will be followed by advertisements and anybody has the right to apply in terms of the Constitution. The Minister advances many reasons for not renewing the contract of Mr McBride which Mr McBride disputes, for example, converting leave days into money without the action being sanctioned. There were a number of what is purported to be performance agreements which were not signed by the Minister and Mr McBride. Other performance agreements have been signed retrospectively. In terms of a contract of employment, the public service regulations state it is an obligation that a Head of Department (HOD) must have a signed performance agreement subjected to agreement by the executing authority. Such agreement would outline deliverables of the department and responsibilities of the HOD.  In the case of Mr McBride, these agreements were blank as they were not signed. There is a letter from Minister Dlodlo pointing to this matter of non-compliance regarding signed performance agreements. This was also mentioned in Minister Cele’s letter. It would be difficult for the Committee to measure the performance of Mr McBride when there is no performance agreement. There are annexures which support the contention of the Minister with facts, for example, the investigation of the Public Service Commission corroborating the abuse of power in terms of unilaterally shifting an official. There is also supporting evidence on the security clearance.

Ms Molebatsi asked if the Committee could get the security clearance of Mr McBride or a full explanation around this before coming to a conclusion of fit and proper. The relationship between the Minister and Mr McBride is so toxic that it cannot be mended – it is like the marriage of a husband and wife at the door of the divorce court. The Committee would need a letter of explanation from Mr Nkabinde and the circumstances around this case.

Mr Mbhele was of the view that the Committee was dealing with its Scorpions moment – the kind of process which could be reflected on many years down the line as is now done with the disbandment of the Scorpions which went through the Justice Committee.  It has now known it was a massive mistake to disband the Scorpions and dealt a major blow to law enforcement capacity to fight corruption. What the Committee is now doing could have a long echo going forward.

Mr Mbhele said the Committee needs to ask if there are compelling and substantive grounds to not renew the contract and/or if there are compelling and substantive grounds for Mr McBride to retain his position based on performance evaluation. With the compelling and substantive grounds, or deal breakers, the Committee only has untested and unproven allegations.  The Minister makes a great deal about how previous appointment decisions were taken on review as being irrational because they failed to take into account adverse findings. The example was made of Adv Menzi Simelane appointed as the National Director of Public Prosecutions and Berning Ntlemeza as head of the Hawks. The difference in these cases is that there were clear and conclusive findings made either by a court or commission. The Committee has no findings at this point – only allegations and two investigations, one by the Public Protector and one by the PSC where it was found the allegations were not proven. The Committee is dealing with a lot of smoke and no fire seen yet.

Mr Mbhele notes the Minister says that in good time, Mr McBride might be able to refute allegations against him. There are two scenarios, one, that the allegations would irrationally relate to misconduct too big  a risk to renew Mr McBride’s contract and so the situation would be pre-empted to nip it in the bud. Two, if the allegations are proven not to have grounds or substance, this would effectively be a miscarriage of justice. The question is how the Members supporting the first scenario would undo such damage or restitute such miscarriage of justice.  Another scenario would be for the Committee to err on the side of caution in that there are, for now, no compelling or substantive grounds not to renew the contract and there is some fairly persuasive evidence that Mr McBride’s performance as Executive Director has been yielding good results. If any of the allegations are then proven true, the Committee can initiate removal processes should Mr McBride be found guilty of egregious misconduct and is therefore not fit for office. This would ensure the Committee does not unfairly make a pre-emptive mistake that cannot be undone with possibly disastrous effects. This is scenario forecasting for the Committee to consider.

Should it be found that there are problems with the security clearance, the Committee must establish the reasons for this and whether there are capacity or efficiency challenges in the SSA. The Committee has previously made inquiries into vetting of the Crime Intelligence environment so the Committee knows there is a big problem here where even senior SAPS officials are awaiting clearance – such matters must be handled fairly across the board so that what is good for the goose is good for the gander. This moment, process and matter is not as simple as saying the contract does not contain a provision for automatic renewal – this is not a Human Resources matter. This will echo and reverberate for some time to come depending on which way it ends up. Rationality must be applied to ensure the Committee is fully covered on all bases. If there is reasonable doubt, the Committee must err on the side of caution instead of burning down the entire forest because of concern of a few weeds when the existence of weed is not even established.

The Chairperson outlined that the Committee needs to establish from Mr Nkabinde whether he has withdrawn the allegations in the form of an affidavit, establishing the security clearance of the Executive Director from SSA and Mr McBride himself and the Minister’s information on the governance framework with the Accounting Officer.

IPID Act

The Chairperson highlighted that section 4 (1) of the IPID Act said the Directorate functions independently of SAPS i.e. there is no link between the two and IPID is funded through an independent budget vote. The Minster acts as the Executive Authority in terms of the appointment. The contract of the IPID Executive Director is governed by the IPID Act – this is spoken to in section 6.

Members would now be given seven minutes to make inputs on the IPID Act.

Mr Mbhele pointed out that the Act is not clear or explicit on the renewal process. The Committee needs to make the most substantive and rational sense of the renewal process in terms of the court order that the Committee is directed by.

Ms Molebatsi said the Act did not say the contract must be renewed. 

Ms Mmola echoed that the Act did not say the contract must be renewed – the Act said the contract can be renewed i.e. there is no demand on renewal. 

Mr Ramatlakane pointed out that the contract is specified as a five-year term. Renewed contracts are still subject to a number of processes including evaluation of the person holding the particular position. This evaluation is the grounds upon which to base whether the contract will be renewed or not. The contract means both parties agree to the terms of the contract. Renewal of a contract is not automatic. Even though the Executive Director is not employed under the Public Service Act (PSA), the situation must be read in line with the Act and public service regulations. The regulations speak to performance agreements and assessments. His understanding was, and this is subject to correction, if the agreements are not signed and assessment is not done, this is regarded as misconduct and it cannot be rewarded. Minister Dlodlo acknowledges the failure around the performance assessment not done but she stated she is prepared to waive the misconduct provided the assessment is done. However nothing has happened on this and the performance agreements are still not signed. This is a critical matter which has lapsed in terms of the Act.

Ms Mabija did not understand how some of the Members who were very opposed to the initial appointment of Mr McBride in 2014 are now the very same Members were jumping sky high to support the renewal of Mr McBride’s contract – this is a complete u-turn. The Committee does not deal with politics but the mandate of the government. These Members have now come to a cul-de-sac

Mr Buthelezi was not sure of his party’s position when Mr McBride was appointed but sometimes one cannot remain of the same opinion when facts prove otherwise. He wanted to understand who was responsible for assessing the performance of Mr McBride. The Act is clear that the contract of the Executive Director can be renewed or not. The Committee needs to consider this renewal in light of the performance of the Executive Director.  

Mr Shaik Emam did not dispute the Act says the contract can be extended as most contracts provide for. At the same time, the Act was not prescriptive that the contract must be renewed. On one hand there is the Act and on the other the contract. The Act allows for extension of the contract and this is not disputed. The dispute is that the contract says the appointment lasts for five years and the five years come to an end on 28 February 2019. While the Act provides for extension, the contract does not. The contract was signed by both parties i.e. both parties agree to the terms of the contract. Should the Committee decide the contract would not be extended, the Committee would not be in violation of the Act. It is the responsibility of the Executive Director to ensure there are performance agreements – when this does not exist, the Committee cannot take it into consideration when deciding renewal of the incumbent’s term. It is a violation to not have these performance reports when one knows it is an obligation to do so.

Mr Shaik Emam said in the letter of Mr McBride to the Minister, it says the Minister has no right to decide if the contract is going to be extended. It is then agreed that the Committee is the deciding factor and it is up to the Committee to be independent and objective in taking this decision. What the Minister did should be disregarded because it is now up to the Committee to decide whether an extension is necessary or if another appointment process should begin where Mr McBride can apply and will be assessed according to the requirements. The Act is not important in this context because the Committee is not acting in violation of the Act. The Act is also not prescriptive that the contract must be renewed.  The contract is important.

Mr Maake said it is clear, having gone through the correspondence between Mr McBride and the Minister, that there is war between the Minister and Mr McBride – the concern is who is going to suffer. When elephants are fighting, it is the grass that suffers. The focus should be on service delivery and the fight against corruption and crime. The Member felt it was therefore not necessary to get into the files because it is clear there is a breakdown of trust – this made all other information immaterial. This is even more so given that the contract is coming to an end. The fact that this matter has reached this point further points to the breakdown. Even though Mr McBride and the Minister belong to the same organisation, which is also not relevant, but could not sit down and discuss this matter, shows the total breakdown. Legally this fact alone is enough for the Judge to make the decision. The Member said he is a lazy person and this might be why he does not want to go through the information. The non-existence of a clearance certificate might also have to be considered. As the oversight authority, the Committee might be creating a potential problem for itself especially given that the contract is expiring and no one is being fired. Members can stand up, fold the files and finish the matter.

Ms Kohler Barnard said she is not a lazy person so would not pack up and leave. Much has been made today of the arrogance of Mr McBride asking for his term to be renewed. It is clear in the Act that the contract may be renewed. It is important for the Committee to fully consider whether Mr McBride deserves to have his contract renewed, if his performance was worthy and if an additional five years would add to the performance of IPID. The Committee should not forget that Mr McBride lost three quarters of a year of his five year term when he was illegally suspended and a Crime Intelligence person was put in by the then Minister – there have been many Ministers. Mr McBride did not throw in the towel then but rebuilt to finish the job. She thought Mr McBride always had top secret clearance for the various jobs he has had. Surely a fit and proper person comes down to whether the unit was successful or not – this would be discussed at a later stage. The arrests of high-ranking Generals, and others, life sentences and increase in jail time speaks to what he has been achieved and equally the irritation he is causing the police –IPID does not work for the police but acts as an oversight body as Mr McBride has made clear. If the contract was not extended, IPID might find itself again with a Crime Intelligence person bounced in. Cases would then be swept under the carpet and evidence disappeared as was seen when the Scorpions was shut down and Mr McBride was suspended. Mr McBride was an ANC proposed candidate and looking at what he had been up to after 1994, she did not believe he fit the criteria laid out in the Act although she had voted for the previous Executive Director much to the shock of the ANC. She watched very carefully as the years went by and thought Mr McBride really pulled his socks up and did the job he was paid to do. He recreated IPID and proceeded to save SAPS hundreds of millions of Rand looted through procurement fraud and systemic corruption.  She came to believe Mr McBride was doing a really good job. The head of IPID does not answer to the Minister. IPID roots out corruption and criminal elements in SAPS, as per the Act. The job of the Minister is to protect the police while IPID catches the criminals in the police therefore the relationship between the two are always going to be somewhat adversarial and this is of necessity. It is clear that IPID deals with police criminality and this is what Mr McBride has done. Five years ago Mr McBride was absolutely the right person for the job but now suddenly he is not.  The people in the room now suddenly do not want him when they voted for his appointment – it is politics at play.

Ms Kohler Barnard said much is made of the adversarial relationship between the Minister and Mr McBride but nothing in the Act says they must be friends – their jobs preclude a close relationship. It was said one could not have two elephants fighting but then what is needed? For the Minister to have a kitten who will purr and do what the Minister wants? This seems to be the case but Members need to think further – what if the next IPID Head disagrees with the Minister? Will they be fired too? This argument will not wash. The Act says the IPID Executive Director must do the job and, looking through the documentation, Mr McBride has done just that.

Ms Molebatsi pointed out the Act spoke to the Executive Director issuing security clearance to the national office – logically, if one does that, oneself must be security cleared and this is not the case.

Appointment letter

Ms Mmola noted that Mr McBride’s security clearance expired in November 2018 and there is no information before the Committee which spoke to application for renewal of the clearance. Given the work of IPID and investigations, this clearance is required. The contract speaks to having security clearance before the Executive Director is appointed.

Mr Ramatlakane pointed out the requirements contained in the appointment letter/contract, referred to as appointment requirements. One requirement speaks to the obligation of the Executive Director to draft the performance agreement to delineate the key performance areas. The fact that this was not done is classified as misconduct – the Committee cannot close its eyes to this. This also deals with the progression benefit and the consequential problem of non-compliance and violation of the contract.

Ms Mabija stood by her previous remarks. She did not want to repeat herself.

Mr Shaik Emam, looking at the appointment letter/contract, said it is very clear on the link of work of IPID to the Ministry of Police e.g. that the Executive Director is subject to the policies and procedures of the Ministry of Police. This clearly shows SAPS, the Ministry of Police and IPID cannot be separated. He did not understand how the Minister had nothing to do with the contract yet signed the contract of employment. The Minster had the right to inform the Executive Director that his contract would not be renewed given that the Minister signed the appointment contract.  

Mr Maake also spoke to the contract specifically referring to the Ministry of Police. It is clear IPID reports to the Minister of Police.

Ms Kohler Barnard noted there were various court cases detailing this matter. She believed security clearance expired every five years – the Committee requires information to show that the renewal process was underway as usually happens about a month before expiration. Perhaps Members can stop referring to Mr McBride as a criminal if they were shown proof that the security clearance renewal process was applied for and is underway – the Committee must request this information. There are enormous delays with this process and even top SAPS officials did not have security clearance as a result. Mr McBride would not have become Executive Director if he did not have security clearance in the first place.

The IPID Executive Director appointment is done so under the Public Service Act and it is correct that the PSC investigated and found fallacious claims made by a person Mr McBride had dismissed. Each of these claims should be put to Mr McBride for the relevant information to be provided to the Committee.

Performance agreement

Mr Ramatlakane referred to the Department of Public Service and Administration (DPSA) document dated 27 July 2016 outlining Senior Management Service (SMS) and DG appointments in line with PSA remuneration/bonuses. There is also a letter written to Minister Cele dated 5 June 2018. The correspondence concerns the request for deviation on the performance agreements of IPID. The document suggests that for any benefit to have been recognised, certain steps must be undertaken for the Executive to be able to qualify. The performance assessments must be done in line with the public service regulations.   This evaluation is used to assess if the employee qualifies for pay progression, as the letter says. The performance agreements have not been completed because they were not signed so they cannot be used to determine the pay progression. From this reading, it looks like the pay progression happened before the steps suggested by Minister Dlodlo in 2018 was undertaken – if this reading is correct, this gets into the realm of misconduct. The submission from Minister Cele speaks to this concern. Performance agreements cannot simply be signed retrospectively but must be subject to engagement from both parties.

Mr Buthelezi thought both parties have omissions in terms of the performance agreements.

Mr Shaik Emam conceded there is responsibility on both the Minister and IPID Executive Director with regard to compliance with performance agreements. Although there have been changes in political leadership, this does not absolve the Executive Director from providing annual performance reports – this has clearly not been done and by failing to comply, the Executive Director is in violation of the conditions of his contract.

Ms Kohler Barnard, in reading the performance agreements and assessments, saw many 100% and full marks etc but the Committee has also done its own assessment each time there has been a quarterly report to the Committee. The Committee saw IPID was really stepping up to the plate. She was not sure what transpired with the dating and signing of the performance agreements and assessments and suggested Mr McBride be given opportunity to explain this. She did not see any problems with the assessments at all.

Ms Mmola thought Mr McBride was not assessed by any Minister because when one looks at maladministration at IPID, Mr McBride paid himself an amount of R100 000 without receiving the approval of the Minister as the Executive Authority of IPID. If Mr McBride was assessed by the various Ministers, how could this irregular salary progression occur?

Performance assessments

Mr Ramatlakane noted that the correspondence the Committee, received from the Ministry on 22 February 2019, indicated no performance assessment was done. The performance assessment/agreement is between the Minister and IPID Executive Director. Without the performance assessment signed by the Minister and subjected to rigour, areas of 100% achievement cannot simply be accepted as the truth as it needs to be tested rigorously. The Committee has spoke about the unfinished Marikana investigation because of the reduction in IPID’s budget by Treasury and the consequential effect on the programmes of IPID. Taking this into account, it is a mystery how there can be 100% achievement in the performance assessment. Claimed performance must be counter-signed by the Minister. There is a letter dated 24 January 2019 which requests a meeting to conduct a performance assessment – this looked like the reality dawned somewhere that there must be a performance assessment. The question is what happened to these assessments during all the prior years? Minister Dlodlo said the assessment must be done even if retrospectively and any sanction would be waivered – this still has not be done. The Committee cannot speak on performance that has not been tested.

Ms Mmola questioned where the performance assessments were of the IPID Executive Director under Ministers prior to Minister Cele (2018). Does this mean Mr McBride was not assessed for four years? Is Mr McBride lying about 100% achievement? Mr McBride was said to be fighting with all the Ministers he has worked with. Members are supposed to be in their constituency offices because it is Monday. Instead, the Committee is dealing with the contract which is going to expire on 28 February 2019 anyway. If the contract is going to be renewed, the Committee must have positive things to say but everything the Committee is dealing with is negative. The Committee must be serious, do the right thing and simply decide on whether the contract will be renewed or not. There is no positive information in the files Members had and the Member’s hand was lame from picking up the heavy files. There has been no performance assessment for four years – what more could be said?

Ms Kohler Barnard pointed out that there are eight police officers on currently on trial for the Marikana incident because of IPID’s investigation. It would be odd to demand a performance assessment for the time Mr McBride was on suspension. The Minister of Public Service and Administration waived the late signing for performance agreements because of the many changes in police ministerial leadership. It is out of order to say Mr McBride is a liar because the Committee must go according to the information before it and not what Members want the outcome to be.

Mr Buthelezi said the Minister is equally responsible for ensuring there was compliance with performance assessments of the IPID Executive Director. Over the tenure of the Executive Director, the Committee has been receiving reports so Members cannot now say nothing has been done in terms of performance. The Committee must balance its work on the matter at hand – Members must allow their hearts to influence their minds and not the other way around. Members were accusing those that were against the appointment of Mr McBride of now fighting to have him stay but the same can be said for the Members that wanted him in but now want him out. 

Mr Shaik Emam said that there is no doubt about the dismal performance of Mr McBride is some aspects. Even if one is not there for a period of time, when one runs an organisation, one sets a standard of performance which must be complied with even if one is not there. Some of the performance has actually been shocking. The Committee has noted the challenges of consequence management – this is why we have cases of the IPID Executive Director remaining in the position even though he does not perform. The Committee must put emphasis on timeous consequence management so that matters of non- or poor performance are dealt with before a contract expires. Looking at the information before him, the Member was of the view that it would be in Mr McBride’s own interest not to use performance at all, particularly over the last year or so, as part of the call for renewal of contract.

Mr Mbhele pointed out that Mr McBride was appointed on 1 March 2014 and he did not have four years prior to this to set a standard in IPID. In March 2015, Mr McBride was also unlawfully suspended until October 2016. He then returns to IPID and until April 2017 he is frozen out by the former Minister of Police, Nathi Nhleko, to the extent that Mr Nhleko wrote to the Speaker and Chairperson of the Committee to say he cannot deal with Mr McBride but that the Committee must do something about him. How can a reasonable assessment process take place under such circumstances? A performance assessment is a two way street between the Minister and IPID Executive Director. This clarity is important when discussing matters surrounding performance assessments. The Member recalled that during several interactions with the Committee, the Executive Director informed the Committee that he had been reaching out to the Minister, writing and attempting to follow up on the matter of funding etc but the responsiveness of the Minister was not quite there. The same thing was experienced by the Private Security Industry Authority (PSIRA) Council who could not fill vacancies because the Minister was not signing the relevant documents. The Committee must be clear and reasonable on the timeframes for how things have unfolded to date.

IPID Amendment Act

Mr Mbhele distinctly remembers the Executive Director and his team informing the Committee of several months of engagement with the Civilian Secretariat for Police Services (CSPS) on a host of amendments IPID wanted to propose to the review of the IPID Act – mention was made of 18 reforms IPID hoped to make. In the end because of the lack of time, it became a Committee Bill where the Committee dealt only with the court judgement. In assessing aspects of performance and outcomes, this is one example where IPID was working hard to make something substantive happen but forces beyond its control meant the matter stood over.

Mr Ramatlakane said there was total under-delivery on amendment of the IPID Act. It needed up being a Committee Bill otherwise the Constitutional Court deadline would not have been met. IPID did inform the Committee of the work it was doing consulting on possible amendments to the Bill but there was a delay caused by swapping of hands on the matter over to the CSPS. IPID is the lead agency in terms of the Act but there was under-delivery and later a matter of one blaming the other. This was not supposed to be the responsibility of the Committee as IPID is the functional area in which the Bill is located. There was no delivery from IPID on this matter. The Constitutional Court imposed an 18 month deadline.

Mr Maake failed to understand how this matter was relevant. His view was that the matter, and others, would not change the relationship between the Minister and Executive Director. Legislation is not the core of the problem.

Ms Kohler Barnard also questioned why the Committee was looking at this matter. The problem at the time was that the CSPS delayed until the Committee needed to hustle to meet a court deadline. The Committee could then unfortunately not look at a full review of the IPID Act. How does this relate to Mr McBride? The CSPS delayed the process.  

Mr McBride applications for SAPS posts

Mr Ramatlakane said Mr McBride, argued in his response to the Minister about his competency level, concluded that he is the best person for the job and no one else in the country could do the job. The response argued strongly for renewal of the contract but Mr McBride’s heart was not actually in the post because he wants to move over to the Hawks or Crime Intelligence. These applications were made recently – within the past year. Even if the Committee decided on renewing the contract, it could not be guaranteed that Mr McBride would remain in the post for the full additional five years because the applications prove his heart is elsewhere. Some of the facts were being dealt with economically. While the argument of Mr McBride is strong on paper, the actions speak differently.  If Mr McBride truly thought he was the correct person for the job, the Committee would not have seen the trail of other job applications. This is misleading – why would one look for other jobs if one’s heart was in one’s current job? No one used the words that Mr McBride is lying and Members should not stretch the words of other Members to make a point – the Chairperson should protect the Committee against this to prevent the process of degenerating. The Committee is critically looking at the information before it.

Ms Mmola noted that Mr McBride said he was the best person for the job of IPID Executive Director but while he was in the position he applied for other jobs. Someone who loves their job so much would not do that. When the Minister informed Mr McBride that his contract would not be renewed, he instructed the Minister that if he did not rescind the decision he would take the Minster to court – why would a good person do this? He should have called the Minister and sat down with him and asked him to extend the contract if he loved his job as much as he said he did. Mr McBride instructed the Minister as if the Minister reported to him. Looking at all the investigations, Mr McBride promised the Committee he would take 16 Lieutenant Generals to court but this has still not been done. When Mr Phahlane went to court, the case was withdrawn. This shows Mr McBride does not love his job. All the IPID investigations were splashed all over the media – the Committee asked that this be stopped. Mr McBride does not love his job but loves the media. There are no results because no one has been convicted.

Mr Shaik Emam added that it was a trial by media. Some of the matters brought SAPS into disrepute because when they went to court, the cases were withdrawn. Mr McBride must do what everybody else must do and this is apply in the normal process if he wanted to become Executive Director of IPID again. Mr McBride can submit his CV and substandard performance agreements and the Committee can consider him as it would do with all other applicants.  This is the route the Committee should follow.

Ms Kohler Barnard said the Act does not guarantee renewal of the contract and if it does, it is only for one further term of five years. Mr McBride was obviously applying for these jobs because he needs to earn a living – this is exactly what Members would do if they knew they were not returning to Parliament after the election. Mr McBride has gone to great lengths to show the allegations against him were all investigated and tossed out by the PSC but he knew he was under attack because he was investigating top police officers. It cannot be said Mr McBride’s heart was not in the job because he was applying for other posts – was he expected to sit athome and twiddle his thumbs? It is it clear Mr McBride has lost the support of the ANC so he was preparing for his future in case the Committee got rid of him.

Mr Maake called for order – it is clear the Committee is deliberating and has not taken a decision. What made it clear that Mr McBride does not have the support of the ANC? This is provocative and uncalled for. Why should the Committee go through the process if this is what is thought? Such statements must be avoided.

The Chairperson asked that Members not cast aspersions at this stage.   

Ms Mmola asked how Ms Kohler Barnard knew Mr McBride has lost the support of the ANC. Did Mr McBride tell her so? The matter at hand was not about confidence of political parties but about the renewal of a contract.

Ms Molebatsi said Mr McBride is a tried and tested member of the ANC and this will not change.

Ms Mabija said the Chairperson must call Members to order. Members were not present to test their emotional strength.

Ms Kohler Barnard said one Member twice called Mr McBride a liar and she then asked that this not be done – both sides must work according to the same rules. Discredited allegations have been raised over and over again as though Mr McBride is a convicted criminal. Members have asked why Mr McBride applied for other jobs but they have answered for themselves – if Mr McBride is watching on TV he knows exactly what the Committee thinks of him. Criminal convictions of IPID under Mr McBride increased from 45 in 2016 to 99 including nine life sentences and over 500 SAPS members were convicted of disciplinary matters as a result of IPID investigations – this is not doing nothing.

Mr Mbhele did not see where in the submission, or any other information, where Mr McBride indicated directly or indirectly that he was the best candidate to be Executive Director of IPID. Mr McBride does express concern that change in IPID leadership at this stage, or appointment of an acting Executive Director, could undoubtedly threaten or impede ongoing important and politically-sensitive investigations. Mr McBride is obviously concerned about the quality and integrity of investigations and the effectiveness of IPID as a department without making a qualitative assessment of his merits to head this. Mr McBride concedes he does not have the right to automatic renewal and is quite happy to be subjected to a process. His grievance with the Minster is ensuring constitutional compliance with the process which no one here disputes – the Minister does not have the sole power to make the decision on renewal and this is all that Mr McBride is crying foul about. There is a question about the fear of threat to investigations because if Mr McBride does secure renewal of the contract, would the same threat or impediment to investigations exist when the contract reaches final expiration and a new Executive Director would have to be appointed? More explanation is required on this by Mr McBride and it should be requested by the Committee.

Committee reports

Mr Shaik Emam, looking at the reports for the past five years, found it clear IPID’s performance is unsatisfactory. The AG has noted year after year irregular expenditure and unauthorised weakness in management – this is important to consider in ensuring the head of IPID is competent and performs effectively. Treasury speaks to the challenges in SA of implementation and consequence management – this is an ideal example. There is limited success and many challenges. The problem of no consequence management is that people remain in these positions year in and year out when they do not perform satisfactorily. The reports of the AG say a lot and must be considered when the Committee takes a decision on renewal.

Mr Mbhele said a key contextual factor in looking at the performance of IPID organisationally in a number of performance areas, is the “exile period”. Mr McBride was at pains to explain and contextualise the Annual Report to the Committee in 2016/17 as there was much regression in performance during the time he was exiled. Attribution of cause and effect is important to keep in mind for perspective. There have been challenges of late with accruals and overspending. During the first reporting meetings with the Committee in 2014, the Committee was then concerned with under-spending and unfilled vacancies. There is room for improvement but it is important to remember the time attributions of cause and effect. The broad trends of performance in IPID have been on the up according to his assessment.

Ms Kohler Barnard, having been around since the start of the Independent Complaints Directorate (ICD) when it had a bookkeeper to what it has achieved today, said it shows there has been quite a development. IPID is deliberately kept very short funded and have to prioritise cases because it does not have the money and resources to deal with every case to come before it. IPID is stuck at the City Forum building which is owned by Mr Roux Shabangu – IPID cannot get out of the building and the Department of Public Works makes no effort to assist. This is not the fault of IPID and not of its making – the challenge is raised every quarter by IPID and has an effect on its work because the building is terrible. This is one of the many challenges IPID has had to deal with. There has been a slow but sure progression. Every time a finding is pointed out by the AG, IPID deals with it before the next quarter. The clean audit itself showed a very good progression.

Trust Relationship between Executive Authority and Accounting Officer

Mr Buthelezi said the Committee would have to consider the problem of trust vs. the performance of the Executive Director in terms of reasons good enough to renew the contract. A balance must be struck between the Executive Authority and head of the institution. So much has happened in the country and politicians are defended.

Mr Mbhele was not sure if either party stated lack of trust as part of the dynamic of the non-renewal. The problem of trust is more inferred given that the Minister has said he would not renew. Assuming this is the case, there is value in asking why there has been a breakdown in trust. If the breakdown or tension is because Mr McBride is too independent-minded and not politically pliant enough, at least from some perspectives, this is precisely the kind of person one wants to be the Executive Director of IPID. Mr McBride is defending the independence of IPID and fulfilling his obligation in ensuring IPID remains the last line of defence against corruption and capture of the criminal justice system that has happened over the last few years. If there is a breakdown in the relationship with the Minister and it is because the Executive Director is doing his job, fulfilling his obligations around independence, impartially and non-partisanship, this is actually a good thing.

Ms Mmola did not remember the Minister informing the Committee of a breakdown in communication between him and Mr McBride. The Committee heard that Mr McBride did not get along with the former Ministers. She did not know about the relationship between Minister Cele and Mr McBride.

Ms Kohler Barnard pointed out there is nothing in the Act which said the Minister and Executive Director have to trust or even like one another. The Executive Director does not answer to the Minister but simply reports on what has happened and what results have been. The Minister is there to act for, speak for and protect the police so therefore their roles are adversarial. The Act does not determine the type of relationship required between the Minister and Executive Director. Many view Mr McBride as bringing down the police so of course this would infuriate the Minister but Mr McBride is doing his job. What if the next Executive Director of IPID irritates the Minister? Will the Committee remove him? And the next one? And the next one? It would be worrisome if the Minister had the arm around the shoulders of the Executive Director and they were chums – this would display an even bigger problem.

Mr Maake said no one is being removed – the contract is expiring and this is the point. It is speculation to say the Minister’s job is to protect the police but if this is the view of some, they are entitled to it. The facts show there is a breakdown of trust - why would this be good? For whom would this be good? When people do not work together it is not a good thing. Members are not the culprits and there can be no grandstanding. There is clear electioneering at play where Members are twisting words to say the ANC no longer likes Mr McBride – this has never been said. The situation of going to court, breakdowns in trust and suspensions cannot continue because it is not serving any party. All other information is irrelevant because these were the facts. 

Mr Shaik Emam thought the emphasis should not be on Mr McBride but on a contract coming to an end. He could not believe the great lengths and cost to which the Committee was going to decide on a contract being extended or not - would this be done for everyone? The law is not there to protect one against the other. Why should an individual be treated so specially and not the others? Of course the work of IPID would be affected by a change in leadership but at some point we all have to leave – one could drop dead tomorrow but life would go on. The investigations do not necessarily depend on the head of the organisation. The Executive Director manages the organisation while investigators are carrying out the work. The impression is being created that Mr McBride is God’s gift to mankind and nothing is going to happen without him. Even with all the allegations, Mr McBride has not managed to prove anything so what makes him think he would do it in another five years? The situation is not about Mr McBride but about the correct process which can be implemented for anybody. The process is very clear and everyone must be treated equally. Nationally and even internationally, everyone knows about the breakdown of trust – there are people funding the entire process to keep Mr McBride there. There is an allegation that Afriforum used to attend some of Mr McBride’s briefings. For the Executive Director of IPID to perform optimally, what is required is objectivity, integrity and honesty for the Minister to ensure justice is done. The Minister and Executive Director should then in fact be working together but the question is why they are not working together. Would it not create doubt that many police officers were implicated but nothing was proven when the case went to court?  The Minister has a reason to be concerned and it is not simply because he does not like Mr McBride. It is not about politics – it is about the fact that many allegations have been made and division in SAPS was caused but nothing was proven when required to do so. There is a breakdown in the relationship even though it should not have an effect. The performance of Mr McBride in this respect has been unsatisfactory added to the fact that he has not proven allegations made against SAPS officers added to the fact that the contract has explicitly come to an end and the Committee needs to be free, fair, transparent and credible in giving everyone an equal opportunity. Mr McBride should apply like everyone else and the best man or woman should get the job. 

Ms Mabija did not understand why the Committee is cracking its skull to explain what it has and carry out the mandate given to it by the National Assembly Rules. Is the Committee doing justice to the process by repeating the same thing? Some people are trying to be Advocates for an individual. The Committee is not dealing with an individual but with performance of the office. Why is the Committee being held at ransom by Members trying to act as Advocates for an individual and not for the office?

Mr Buthelezi said Members cannot discourage others from engaging on this matter. The understanding of these Members on the matter is wrong – the Committee is not dealing with a normal process but with a court order, as a respondent, to make a decision on the renewal of the contract of Mr McBride, the applicant. The Committee is specifically dealing with the renewal of Mr McBride as an individual as instructed by the court.

The Chairperson added the Committee is following a specific process as outlined in the court order but Members were free to raise anything. There is a clear roadmap which will be followed – this can be assured.

On some of the discussion topics, the Chairperson said Members have not been able to fully study the documents – this must be done in order to have substantive discussion. Members would have to make an informed decision procedurally. What was still outstanding in terms of discussion was the AG report and notes, a physical copy of the PSC letter on the security clearance matter, governance framework of the Executive Authority, Public Protector investigation, fit and proper person, independence of IPID and current political context. It is important that Members are fully au feit with the matters and documents.

Mr Mbhele noted that the Committee should request further clarity from Mr McBride on the applications he made to become Divisional Commissioner of Crime Intelligence and Head of the DPCI – this would put Members at ease regarding his heart being in IPID. Mr McBride should also be requested to address the change in leadership/non-renewal being a threat to investigations given the hypothetical situation that should the contract be renewed, in five years time, it would be a definite end of the road for Mr McBride as IPID Executive Director.

This would be requested for submission by the end of business tomorrow, Tuesday, 26 February 2019.

Mr Maake asked whether this would be necessary. He did not think those two matters held enough weight to change anything. The Committee might be dragging matters out unnecessarily. Members already have enough information to make a decision. Questioning Mr McBride on why he applied for these two jobs seems frivolous.

Mr Shaik Emam was not interested in why Mr McBride applied for these jobs. Everybody has the right to apply for other jobs if they knew a contact was coming to an end. This is irrelevant and would waste time. He did not agree with the point of discussion suggested on political context because politics had nothing to do with the matter so what difference would it make. The matter at hand is a contract which is coming to an end. It is a straightforward matter for the Committee to deal with. The Committee must adhere to the timeline set forward by the court order, do its work and complete its report. The Committee must be objective – if Mr McBride is saying his departure would negatively affect current investigations, the Committee should solicit the view of someone else to hear why the contract ending would not have this effect. The Committee cannot believe one side of the story.  Perhaps a view should be requested from the Minister or Department. The Member was of the view that the contract ending would not negatively affect the investigations because five years down the line, if the contract was renewed, the same thing would happen. No one is indispensable.

Mr Buthelezi agreed the Committee had more than enough information before it but the question is what information would be used in making the determination.

Ms Mmola thought soliciting more information would delay the work of the Committee and this is concerning given the deadline of 28 February 2019. Would asking Mr McBride to clarify why he applied for these positions change the decision of the Committee when it is made? It did not make sense. If it came down to voting on whether to request more information then so be it. This is too much.

The Chairperson said Members must decide if the further information requested would be material in assisting the process whereby the Committee would reach a decision.

Mr Maake agreed the question of materiality should be asked. The Committee needs to weigh the information. Some people might think Mr McBride’s marriage certificate is important. It is neither here nor there because eventually there will be another incumbent.   If one got into an accident and could not think straight anymore, that person will have to be replaced. It would waste time if frivolous requests were made. The Committee has enough information to take a decision.

Ms Kohler Barnard said Mr Mbhele has every right to ask for whatever he wants. A great deal has been said that Mr McBride applied for other jobs – Members claim this shows his heart is not with IPID. Mr McBride has the right to respond to this and she wanted to see the response. An assertion was made that the change in leadership of IPID could be a threat to the investigations. Everyone knew Mr McBride is appearing before the Zondo Commission of Inquiry – it is presumed these are the investigations which would come under threat. Mr McBride needs to explain why he thinks it will be a threat and this is a very reasonable request to make of him.

Mr Shaik Emam did not see the relevance in how these responses would benefit the cause of the Committee in deciding whether the contract should be extended or not. Even if Mr McBride was no longer the Executive Director, he still has the right to appear before the Zondo Commission and implicate whoever he wants to – this does not mean he should be kept in the job when his contract is coming to an end. The Committee has submissions from both the Minister and Mr McBride – together with the contact, Act and performance, the Committee can make a decision. One must be critical of whether any further information would aid the Committee in coming to a decision in a few days. The Committee needs to request Mr McBride’s ID because one is not sure of his age and the law says retirement age is 65. The Committee has all the information it needs to make a decision on the matter before it. The Committee needs to get the view from the other side on whether the non-renewal of the contract would really affect the IPID investigations as Mr McBride claimed it would – the Committee would then have both sides.

Ms Mabjia felt the Committee was being subjected to delay tactics and strategies to exhaust Members. The contract is coming to an end on 28 February 2019. The Committee is not removing Mr McBride deliberately. The Committee is doing the correct thing. The Committee has all the information it needs. The answer lies in the fact that the contract is expiring on 28 February 2019. The Committee needs to implement what it is expected to instead of speaking in parables. The contract must not be extended.

The Chairperson said all Members have the right to table requests for additional information.

Mr Buthelezi said the Committee must not be seen to be contradicting itself. Members should be allowed to request additional information. In terms of the applications, he did not see anything wrong in someone having higher aspirations. Members were quick to say information was irrelevant simply because they did not see the material benefit of it to the discussion.

Mr Mbhele fully agreed that the principle of materiality is important if more information is requested. The principle of consistency should also apply. It does not make sense to seek clarity on a particular matter but then when the request for additional information is made to assist in bringing clarity, it is said the information would be irrelevant.

The Chairperson said the information would be requested for Mr McBride to provide more rationale on the two job applications. The Committee would have further discussion tomorrow and then decide if further information is required from Mr McBride on the matter of the impediment to investigations should the contract not be extended. The Committee would keep an open mind.

In terms of tomorrow’s programme, Members must ensure they are fully au feit with the matters to deal with the AG reports and notes (still awaited at this stage), PSC letter, Public Protector Investigation, independence of IPID, fit and proper person and current political context. The meeting tomorrow would start at 10h00.

The meeting was adjourned.