Experts are divided on the national police commissioner's decision to grant the deputy national commissioner for crime detection a leave of absence.
Some believe that Gen Fannie Masemola granting a leave of absence to Lt-Gen Shadrack Sibiya will help protect the integrity of the probe into the allegations against him, while others argue that Masemola should have taken a tougher stance by placing Sibiya on suspension.
On Tuesday, Masemola confirmed that Sibiya has been placed on a leave of absence pending departmental investigations into his conduct.
KwaZulu-Natal provincial commsioner Lt-Gen Nhlanhla Mkhwanazi fingered Sibiya when he made explosive revelations in a press conference last week.
He alleged Sibiya obstructed justice, stalled investigations into political assassinations and organised crime and shielded politically connected suspects by taking control of more than 120 sensitive dockets. Mkhwanazi said that was done without the authority of the national or provincial commissioner.
Further allegations implicated the Senzo Mchunu, the minister of police, suggesting links to controversial figures such as Vusumuzi "Cat" Matlala, who faces serious criminal charges, but reportedly remains politically protected while benefiting from lucrative police contracts.
Both Sibiya and Mchunu have denied the allegations. Ramaphosa placed Mchunu on immediate leave of absence on Sunday.
Addressing the nation on Sunday, President Cyril Ramaphosa announced a commission of inquiry that would make findings and recommendations for criminal prosecutions, disciplinary actions and institutional reform. Ramaphosa also placed Mchunu on immediate leave of absence.
“Once established, the commission shall consider prima facie evidence relating to the involvement of individuals now employed within law enforcement or intelligence agencies.
“Where appropriate, the commission must make recommendations on the employment status of such officials, including whether they should be suspended pending the outcome of further investigations,” Ramaphosa said.
Speaking to the SABC on Tuesday night, Sibiya said he was taken aback by the leave of absence and expressed surprise that the SAPS is conducting a parallel investigation to the one launched by Ramaphosa with the inquiry.
He said he had expected that Masemola would allow the commission to start before taking any action.
“This came as a surprise, but I'm glad I will have my day at the commission of inquiry and I will be able to present all the documentary evidence that I have,” he said.
Dr Llewelyn Curlewis from the University of Pretoria believes that Masemola’s move of granting Sibiya a leave of absence contributes to the already fragile situation the SAPS finds itself in.
“I would have preferred a suspension if the commissioner was serious in engaging disciplinary proceedings,” he said.
Curlewis said placing someone on leave means the public continues to pay their exorbitant salary and benefits indefinitely, with no immediate action being taken.
“Masemola must take a side ... he cannot merely be seen as an innocent bystander. It comes with the job description!” he said.
Unisa criminal law expert Dr Mpho Matlala said Masemola’s action was the best course under the circumstances.
Leave of absence is not defined anywhere in the regulations and carries no procedural safeguards, no record of suspension and no formal triggering of an investigation. Why was suspension or temporary transfer not used? How will the investigation be protected against interference? Why disregard clear provisions of SAPS’s disciplinary code?
— Ian Cameron, police portfolio committee chair
Matlala added Masemola’s decision is intended to ensure investigations into the allegations run smoothly.
He said through the move, the risk of undue influence or interference by those fingered is reduced substantially.
“So this was a carefully thought-out decision that protects all parties involved. Placing Sibiya on special leave is common practice. This will avert unnecessary litigation under labour laws. It's not a suspension and the person will enjoy full salary benefits. It's an administrative action intended to pave the way for an inquiry, to avoid unlawful suspensions,” he said.
Matlala noted that interpretations are subjective and either course of action by Masemola will attract both negative and positive criticism.
It's Matlala’s view that Masemola used one of the administrative tools available to him and there is nothing untoward about this course of action.
Prof Andre Duvenhage, a political analyst from the North West University, concurred with Matlala that placing Sibiya on leave was probably the best decision because he is an influential person and may have an impact in terms of the inquiry.
However, Duvenhage said there were political factors involved in the decisions Masemola was taking.
“But there's most probably merit in what he said about the 100-plus cases of which 54 were political in nature. And we know that South Africa at the moment is basically a mafia state. So we can expect this, and even a legal decision that is correct will have political implications of some sort,” he said.
Duvenhage said Mkhwanazi didn't follow proper process and protocol.
“If you are a whistle-blower within this context, you may shorten your life. And we know what happened to Babita Deokaran, to mention only one among 100 people. I believe that we need strong action in this regard, and I think that Mkhwanazi did the right thing to open it up,” Duvenhage said.
However, he noted concerns about the forces that may be behind Mkhwanazi.
“I don't believe he acts on his own in terms of his own consciousness. I believe there were political factors behind the scenes. To me, the more broader political narrative is a very organised attempt to get rid of Ramaphosa. Now, there's a lot of criticism against Ramaphosa — it is justified in many ways. But the fact of the matter it is still an organisation, and I cannot exclude the fact that Mkhwanazi may be part of a bigger organised system in this regard,” said Duvenhage.
Political analyst Dr Levy Ndou said Masemola's decision doesn't muddy the process, but in the interest of justice and fairness, Sibiya should have voluntarily requested for a leave of absence.
“Because he is implicated in the allegations, the best decision would be for him to request a leave of absence or to be put on a leave of absence. So, in my view, the right decision has been taken,” he said
He said this does not compromise the investigation and makes it run more smoothly, because he will not have any influence on the investigations.
“This is very good for the investigations and also for the commission itself. A leave of absence would also give Sibiya an opportunity to prepare himself for the commission of inquiry because, whether we like it or not, this man is going to be called to the commission to explain himself,” he said
The Sunday Times has learnt that the Investigating Directorate Against Corruption (Idac), is probing possible tender corruption amounting to more than R6.7m against Mkhwanazi and Masemola.
The publication said sources in law enforcement claim Mkhwanazi’s briefing was a pre-emptive strike aimed at mobilising public sympathy to thwart any attempt by Idac to arrest him and Masemola. The case against them involves allegations they received cash bribes from corruption-accused Inban Kistiah, a Durban businessman who was awarded the R6.7m tender in 2016.
Masemola has already stated that he will not be going after Mkhwanazi, after the explosive allegations he made against Mchunu and Sibiya, which some have characterised as bringing SAPS into disrepute.
“He won't be persecuted. From my side, surely, there won't be persecution of any member of the SAPS. Not only him, but anyone,” Masemola said.
Police portfolio committee chair Ian Cameron has flagged the difference between “leave of absence” and “suspension”.
Cameron said this is highly irregular, as in policing a “leave of absence” and “suspension” mean very different things, and the distinction matters.
He said that when allegations of misconduct arise, the only lawful options under the regulations are “precautionary suspension or temporary transfer”.
“Regulations state: the employer may suspend a member on full pay if the member is alleged to have committed misconduct and the employer believes that the presence of the member at the workplace might jeopardise any investigation, or endanger the wellbeing or safety of any person or state property,” he said.
Cameron added the principle is fundamental — precautionary suspension exists specifically to protect the integrity of the investigation and the institution's integrity, while ensuring due process.
By asking Sibiya to take a leave of absence, the police are sidestepping their disciplinary code, he said.
“Leave of absence is not defined anywhere in the regulations and carries no procedural safeguards, no record of suspension and no formal triggering of an investigation. Why was suspension or temporary transfer not used? How will the investigation be protected against interference? Why disregard clear provisions of SAPS’s disciplinary code?”
Cameron said a leave of absence is not a lawful substitute for suspension.
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