Deputy national police commissioner Shadrack Sibiya’s court bid to return to work will be heard in the Pretoria High Court on September 3.
On July 15, Sibiya was instructed to “stay at home” by national police commissioner Fannie Masemola, “pending the outcome of an investigation”. In a letter to Sibiya, Masemola said his office was “gravely alarmed” by the allegations that had been made at a press conference by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi.
Mkhwanazi’s bombshell allegations, in which he implicated police minister Senzo Mchunu, Sibiya, several law enforcement bodies and members of the judiciary in colluding in high-level crime, led to President Cyril Ramaphosa establishing a judicial commission of inquiry to investigate.
Ramaphosa also placed Mchunu on “a leave of absence” and appointed Prof Firoz Cachalia as acting police commissioner. It then later emerged that Sibiya, also implicated by Mkhwanazi, had been told to stay at home by Masemola.
On Tuesday, several things, all related to Mkhwanazi’s allegations, happened separately.
In the morning, the Madlanga Commission announced that it would not be able to commence its hearings on September 1 as planned, “due to delays in the procurement of vital infrastructure”.
In the afternoon, justice minister Mmamoloko Kubayi announced the immediate suspension of deputy director-general responsible for ICT Jabu Hlatshwayo as a consequence. The justice director-general Doc Mashabane had also been informed that Ramaphosa had delegated to Kubayi the power to institute disciplinary proceedings against him, she said.
Tuesday was also expected to bring developments in the high court litigation by former president Jacob Zuma and the MK Party over Ramaphosa’s decisions to establish the Madlanga Commission, to put Mchunu on leave and to appoint Cachalia as acting minister.
Any role that I played was within the course and scope of instructions from the national commissioner ... The alternative would have been to disobey a direct order from a superior.
— Deputy national police commissioner Shadrack Sibiya
The MK Party and Zuma turned to the high court after failing to persuade the Constitutional Court to hear their case directly. They had asked that their case be heard on Tuesday, but a “case management” meeting for this litigation is expected on Wednesday.
In Sibiya’s case, he said in his court papers that the “stay at home” instruction was effectively a suspension and was unlawful on several grounds. These included the instruction to stay at home violated the regulations that applied to police disciplinary matters. Masemola’s proposed investigation was also unlawful as it “usurped the functions” of the Madlanga Commission, he said.
Sibiya has asked the court to set aside Masemola’s stay-at-home direction and interdict the police from conducting any “parallel proceedings” in relation to Mkhwanazi’s allegations.
Sibiya said Mkhwanazi's allegations were made “without affording me any opportunity to engage with them”. Yet they had been “treated as fact by the media and the public at large”. Similarly, Masemola’s actions were taken “on the strength of untested allegations”.
But in terms of the regulations, Masemola was not allowed to suspend Sibiya before giving him an opportunity to make written representations and before he had considered these representations, said Sibiya.
He said if Masemola had asked him about the allegations, he would have been able to refute them “by objective evidence”. The instruction to disband the political killings task team emanated from police minister Mchunu, and it was given to the national commissioner, he said.
On January 3 this year, Sibiya was emailed from Masemola’s office about the “deactivation” of the task force and for a “close-up report” — to be submitted on January 14 “for Natcom’s consideration and sign off to the minister,” he said.
“Natcom” was a reference to Masemola. “Any role that I played was within the course and scope of instructions from the national commissioner ... The alternative would have been to disobey a direct order from a superior,” he said.
But Masemola said in his court papers that Sibiya was not being directed to stay at home or investigated over the allegations made by Mkhwanazi. Instead, Sibiya’s infraction was that he disobeyed Masemola’s orders in the way he went about the disbandment.
Masemola said he had instructed Sibiya that the disbandment should be done in phases — “to ensure continuity of cases, particularly those that are under investigation and those that are in court”. But it later came to Masemola’s attention that, “contrary to my direct instructions”, Sibiya had directed that the dockets of the task team be “immediately” handed over to head office.
“The effect of the handover of the dockets to the head office was these dockets were removed from investigators, and that they remained dormant at head office, not assigned to any investigators, and without any plan for their future investigations,” said Masemola.
“The merits of the allegations by the Lt-Gen Mkhwanazi are a separate issue,” he said.
He said his stay-at-home instruction was not a suspension. It was merely to ensure that Sibiya, “a high-ranking deputy national commissioner”, was not present at the office while the preliminary investigation took place, “to ensure that witnesses would freely and voluntarily participate”.
Masemola said as national commissioner, he was mandated in terms of the constitution to control and manage the police service. “It remains the management prerogative of me, as national commissioner ... to order investigations where I deem it necessary,” he said.
He said he was “perplexed” by Sibiya’s claim that a SAPS investigation would usurp the role of the Madlanga Commission.
“I have studied the terms of reference for the judicial commission ... I am unable to find any restrictions on my authority to manage and control the police service,” he said.
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