The “procedural spaghetti” followed by national police commissioner Fannie Masemola when he instructed his deputy, Shadrack Sibiya, to “stay at home” pending an investigation breached Sibiya’s legal rights, the Pretoria high court heard on Wednesday.
Judges Nomonde Mngqibisa-Thusi, Norman Davis and Graham Moshoana were hearing Sibiya’s urgent court to set aside Masemola’s instruction and to interdict “parallel proceedings and action” against Sibiya until the conclusion of the Madlanga commission. The commission was established to investigate allegations of “criminality, political interference and corruption” in the criminal justice system, triggered by the explosive allegations of KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi on July 6.
In a letter to Sibiya on July 14, Masemola said his office was “gravely alarmed” by Mkhwanazi’s allegations and instructed him to stay at home, pending an investigation.
In court on Wednesday, Sibiya’s counsel, Kameel Premhid, said the instruction was unlawful: Masemola did not have the power, under the SAPS’s disciplinary regulations, to make it. Under the South African Police Service's disciplinary regulations, Sibiya could not be put on precautionary suspension — effectively what had happened with the stay-at-home instruction, argued Premhid — unless he had been given an opportunity to make written representations. Yet there had been no such opportunity, said Premhid.
Premhid faced several questions from the judges about Masemola’s claim that the stay-at-home instruction was not a suspension in terms of the SAPS regulations but was instead an exercise of his powers under the constitution to control and manage the SAPS.
“It remains the management prerogative of me, as national commissioner ... to order investigations where I deem it necessary,” he said in his affidavit to court.
Masemola said the instruction to stay at home 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”.
But Premhid referred to the constitutional principle of “subsidiarity”. He said when there were laws in place to regulate the exercise of constitutional powers, Masemola was not permitted to “circumvent” these and rely directly on the constitution. The high court had also, in a previous judgment, endorsed the principle that the SAPS regulations were the instrument that determined whether a disciplinary power existed and had been properly exercised, he argued.
This is not a strange process. There is nothing irregular about this process
— Stephanus Coetzee SC, counsel for the SAPS and Masemola
However, Stephanus Coetzee SC, counsel for the SAPS and Masemola, argued that the stay-at-home instruction was not a disguised precautionary suspension, as claimed by Sibiya. He said this was clear from the letter itself, which made no reference to any disciplinary process. The stay-at-home instruction was not even a disciplinary matter, he argued.
Coetzee likened the instruction to a shooting by a constable at the scene of a crime, with internal investigators arriving on the scene to investigate. If the police officer alleged to have done the shooting was told to “go home while we look at what has happened here” — to protect the investigation — that would be lawful, said Coetzee.
He said the constitution, the SAPS Act and general regulations governing the police (not the disciplinary regulations) gave the national commissioner the authority to manage the police. The SAPS Act and the general regulations gave police commanders the authority to issue lawful commands. Not every command — like stand up, salute and the like — could be given under a specific empowering provision in law.
But if the command was a lawful one, a commanding officer was empowered to give it, said Coetzee. Here Masemola was the most senior police officer in the country and Sibiya the second most senior. Masemola was therefore lawfully entitled to instruct Sibiya to stay at home.
Coetzee said the stay-at-home instruction was followed by a “notice of intended suspension” — on August 19 — in which Sibiya was given the opportunity to make representations.
“This application is completely premature and in fact is done with the intention of stopping any investigation,” he said. “This is not a strange process. There is nothing irregular about this process.”
Premhid said where there were specific laws that applied to a situation, these had to be preferred by a court to general laws — the doctrine of lex specialis derogat legi generali. Here there were specific regulations for disciplinary matters, which must therefore trump the general regulations referred to by Coetzee.
Moshoana said Coetzee’s argument was that the command was not an exercise of a disciplinary matter.
Coetzee argued everyone agreed that the allegations made by Mkhwanazi were very serious. “If the national commissioner ... ignored these allegations and allowed the applicant to proceed in his post ... it would cause the public to lose trust and confidence in the SAPS,” he said in his written argument.
At the end of argument, Mngqibisi-Thusi said judgment was reserved and the parties would be notified when judgment is ready.
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