The ConCourt declared that the Minister’s decision to suspend and institute disciplinary proceedings against the executive director of the Independent Police Investigative Directorate (IPID) was unconstitutional and set it aside.  The ConCourt  rejected the Minister’s argument that in the past the ConCourt had endorsed the principle that administrative decisions taken under a valid law, that is subsequently declared unconstitutional, are not automatically invalid but rather “[t]he rule of law requires their preservation”.

McBride v Minister of Police (CCT255/15) [2016] ZACC 30 (6 September 2016) per Bosielo AJ (unanimous).

ConCourt summary:

Confirmation proceedings — independence of police complaints body — section 206(6) of the Constitution — decision by Minister to suspend and institute disciplinary proceedings against Executive Director of the Independent Police Investigative Directorate invalid and set aside


Declaration of invalidity — section 6(3)(a) and 6(6) of the Independent Police Investigative Directorate Act 1 of 2011 — sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act, Proclamation 103 of 1994 — regulation 13 of the IPID Regulations.


Excerpts without footnotes

[3]     The applicant is Mr Robert McBride, the Executive Director of IPID since 3 March 2014.  He has been on precautionary suspension since 24 March 2015 – pending a disciplinary inquiry to be initiated against him by the Minister of Police.   The first and second respondents are the Minister of Police and the Minister of Public Service and Administration respectively.   Only the Minister of Police (Minister) participated in the proceedings before us.   The Helen Suzman Foundation (HSF), a non-governmental organisation whose main objective is to defend the values that underpin our constitutional democracy and to promote respect for human rights and the rule of law, was admitted as amicus curiae (friend of the court) and presented oral submissions before us.

[4]     Section 206(6) of the Constitution provides for the establishment of an independent police complaints body by national legislation.  Pursuant to this section, Parliament established IPID.   Its primary duty is to investigate any alleged misconduct or offence committed by a member of the police service.   IPID’s independence is further bolstered by section 4 of the IPID Act which provides that the Directorate functions independently from the South African Police Service (SAPS).

[5]     However, this must be contrasted with section 206(1) of the Constitution, which provides for a member of the Cabinet to be responsible for policing and the determination of national policing policy.  Allied to this is section 6(3) of the IPID Act which makes IPID’s Executive Director subject to the laws governing the public service as well as section 6(6) which authorises the Minister to remove the Executive Director from office on specified grounds.   But this section is silent on oversight of the Minister’s action by Parliament.

[6]     Mr McBride’s primary submission is that the cumulative effect of these pieces of legislation is that IPID does not have sufficient safeguards to ensure that its Executive Director and IPID, as an institution, are able to act with sufficient independence.  The gravamen of this submission is that these provisions are inimical to any notion of the independence of the Executive Director as demanded by both the Constitution and the IPID Act.

. . . . .

[8]     Central to this application is the crisp question: whether, in the light of the applicable statutory framework, IPID enjoys adequate structural and operational independence, as envisaged by section 206(6) of the Constitution, to ensure that it is effectively insulated from undue political interference.

. . . . .

[29]     Section 6(3)(a) of the IPID Act makes the Executive Director subject to the laws governing the public service.  In terms of the Public Service Act, section 16A(1)(a) authorises the executive authority to take appropriate disciplinary steps against the head of the department and to report such non-compliance to the Minister.   Section 16B in turn authorises the institution of disciplinary proceedings against such a head, whilst section 17(1) vests the power to dismiss in the relevant executive authority.   Is this statutory regime compatible with the independence of IPID and its Executive Director as envisaged by section 206(6) of the Constitution?  I think not.

[30]     It is axiomatic that public servants are government employees.  They are beholden to government.   They operate under government instructions and control.   The authority to discipline and dismiss them vests in the relevant executive authority.   This does not require parliamentary oversight.   To subject the Executive Director of IPID to the same regime is to undermine or subvert his independence.   It is not congruent with the Constitution.

[31]     What then does the independence of IPID mean?  Does it mean complete or sufficient independence?  Admittedly, it is difficult to attempt to define the precise contours of a concept as elastic as this.   It requires a careful examination of a wide range of facts to determine this question.   Amongst these are the method of appointment, the method of reporting, disciplinary proceedings and method of removal of the Executive Director from office, and security of tenure.   However, this Court has had occasion to deal with the independence of a similar institution in Helen Suzman Foundation[1] and Glenister II.   Although the two cases deal with the independence of the DPCI, whose mandate is different to that of IPID, they offer useful guidelines in giving substance to IPID’s constitutionally guaranteed independence – they offer bright lights for us as we traverse this new area.

. . . . .

[35]     That Court had recourse to a report by the Organisation for Economic Co-operation and Development titled: Specialised Anti-corruption Institutions: Review of Models, which was cited with approval by this Court in Glenister II.  The report proffers the following definition of independence:

“Independence primarily means that the anti-corruption bodies should be shielded from undue political interference.   To this end, genuine political will to fight corruption is the key prerequisite.  Such political will must be embedded in a comprehensive anti-corruption strategy.  The level of independence can vary according to specific needs and conditions.  Experience suggests that it is the structural and operational autonomy that is important, along with a clear legal basis and mandate for a special body, department or unit.  This is particularly important for law enforcement bodies.  Transparent procedures for appointment and removal of the director together with proper human resources management and internal controls are important elements to prevent undue interference.”

[36]     Glenister II expressly stated that this definition was not part of international law, but accepted that it serves as a useful interpretive tool against which IPID’s independence may be measured.  I have found the criteria adumbrated in this definition to be both useful and illuminating in trying to define and delineate the contours of independence as it pertains to the independence of IPID.

. . . . .

What is a just and equitable remedy?

[45]     As I indicated earlier, the Minister conceded that the decisions to suspend and institute disciplinary proceedings against Mr McBride are invalid.  However, he pleaded that they should not be set aside but rather be allowed to continue to finality as if they were undertaken by the relevant Portfolio Committee of the National Assembly.  The main submission is that the Minister took this decision in good faith as, when he took it, he considered it to be constitutional as the relevant section had not been declared unconstitutional.  Furthermore, it was submitted that to set it aside would be disruptive.  It would thus not be a just and equitable remedy as the disciplinary proceedings against Mr McBride had already commenced and were partly heard before an independent chairperson.  The Minister submitted that setting aside these proceedings would permit Mr McBride to continue working as the Executive Director notwithstanding the fact that there is a prima facie case of gross misconduct against him.

[46]     On the contrary, Mr McBride argued that the decisions by the Minister must be set aside.  In the main, he contended that it would infringe the rule of law for this Court to preserve the Minister’s actions which have been proved to be unconstitutional.  In other words it would be untenable, if not invidious, for this Court to countenance an act which has been declared unconstitutional.  In essence, he submits that no court can make an unlawful act lawful.

[47]     As a counter, the Minister argued that this Court has in the past endorsed the principle that administrative decisions taken under a valid law that is subsequently declared unconstitutional are not automatically invalid but rather “[t]he rule of law requires their preservation”.  Three decisions of this Court were cited in support of this claim: Van RooyenDemocratic Alliance and Kruger.

[48]     I will briefly deal with the three cases to demonstrate that the reliance on them was misguided.

[49]     In Cross-Border Road Transport Agency, this Court held that the legal consequence which ordinarily flows from a declaration of constitutional invalidity is that the impugned law is invalid from the date of its promulgation.  This is the so-called default position.   In other words, the order of invalidity will have immediate retrospective effect unless the order is varied by an order of court.  This can be done for a variety of reasons provided it is just and equitable.

[50]     In Van Rooyen, it is true that, although several provisions of the Magistrates’ Courts Act were declared to be invalid, the decisions taken under them were preserved. This is because the interests of justice demanded this, as it would have caused chaos if all previous magistrates’ courts’ decisions were overturned.  No comparable interests of justice considerations exist in the present case.

[51]     Similarly, in Democratic Alliance, the invalid decisions by Mr Simelane were preserved as it would have brought about confusion and disorder if all the decisions taken by Mr Simelane were set aside as nullities. Yacoob ADCJ therefore rightly preserved these decisions.

[52]     The Minister incorrectly contends that Kruger supports the proposition that “an act done pursuant to invalid statutory provisions must nonetheless remain valid in the interests of certainty and to avoid disruption”.  But the case supports no such general proposition.   In Kruger, the Court preserved the conduct of the Road Accident Fund that had relied on invalid proclamations.   This was to avoid disruption and disorder.  There must be an interests of justice consideration that overrides the presumption of objective constitutional invalidity.

[53]     It is worth noting that Mr McBride is not opposed to his suspension followed by disciplinary proceedings.  Furthermore, he has declared his willingness to participate in any process provided it is constitutionally compliant.

[54]     In an attempt to obviate the disruption which the Minister feared might ensue if his decisions to suspend and discipline Mr McBride are set aside, the High Court made an order that the declaration of invalidity of the Minister’s decision to suspend and institute disciplinary proceedings against Mr McBride be suspended for 30 days in order for the National Assembly and the Minister, if they so choose, to exercise their powers in terms of the provisions referred to in paragraph 3.1 of its order.  Mr McBride is amenable to this.   I find this to be just and equitable for both parties.  It affords the Minister the opportunity, if he so wishes, to restart the process but on a proper basis.  At the same time it ensures that Mr McBride’s suspension is reasonable as he is still protected by the constitutionally protected presumption of innocence in his favour.