Zondo, SAPS, McBride and the anatomy of the capture of South Africa's law enforcement cluster

The much-anticipated testimony of former IPID head Robert McBride to the Zondo commission has been postponed to Thursday, 11 April.

This delay is to provide the more than 30 high-ranking individuals in SAPS and Cabinet time to respond to McBride's serious allegations of criminality. The Zondo Commission heard on Monday that the delay in sending out notices to those implicated had been due to resource challenges at the overwhelmed commission.

McBride's testimony includes over 2,000 pieces of evidence. These must all be printed and paginated and sent, in paper bundles, to those fingered. These individuals now have 14 days to respond and to apply to cross-examine McBride.

They have been placed on notice.

With McBride's expected testimony (as well as that of former HAWKS senior members Johan Booysen, Shadrack Sibiya and Anwar Dramat), the focus of the Commission will be directed for at least the next seven days, to one of the key cogs in the broader political State Capture project – how law enforcement agencies were compromised and in some instances completely disabled.

Apart from the political capture of SAPS, its the economic capture by a small circle of recurrent suppliers (many former members-turned-suppliers) sits also at the heart of the deep corruption and dysfunction within SAPS.

And remember it is IPID which is tasked with investigating, exposing and cleaning up the gargantuan and systemic steaming pile of corruption that has hampered SAPS for years.

This has not only compromised the safety and the effectiveness of thousands of good rank and file SAPS members, but also that of South Africa which has been consistently plagued by endemic levels of violent crime.

The signs of the deep divisions in SAPS are everywhere.

Just this weekend City Press reported on hostilities between Minister of Police, Bheki Cele, and National Commissioner, Khela Sitole.

This specific animosity stems from Sitole's suspension on 4 April of one of his deputies, Lieutenant General Christine Mgwenya. Mgwenya was the deputy national commissioner for human resources and City Press writes that she is “understood to be close to Cele”.

Mgwenya was Cele's Chief of Staff between 2009 and 2011 when the Cat In The Hat was National Commissioner. Sitole suspended Mgwenya with regard to a drivers licence she obtained for her son through a police driving school.

Piffling in the greater scheme of things but telling in the fault lines the suspension of Mgwenya has revealed.

McBride, of course, has been at loggerheads with SAPS, CI and the HAWKS with regard to a classified document relating to an attempted fraudulent procurement of a R45-million grabber before the ANC's elective conference at Nasrec in December 2017.

Sitole has been named in the R45-million procurement shake down as have former Minster of Police Fikile Mbalula's adviser, Bo Mbindwane, Acting Crime Intelligence Head, General King Bhoyi Ngcobo, Deputy National Commissioner of Crime Detection and former Provincial Commissioner of the Free State, Lieutenant-General Lebeoana Tsumane, and Deputy National Commissioner of Management Advisory Services Major-General Francinah Ntombenhle Vuma.

The group was filmed at a secret meeting at the Courtyard Hotel in Arcadia, Pretoria, on 13 December 2017, three days before the ANC’s 54^thelective conference. Sitole cancelled the deal after IPID contacted him about the illegality of the procurement.

Since then, SAPS and Sitole have refused to declassify documents related to the procurement claiming doing so would threaten “national security” while the IGI, Setlhomamaru Dintwe, agrees with IPID that the documents are being classified to cover-up a criminal conspiracy.

As the end of McBride's contract drew near (it ended on 31 March 2019) Cele pounced, ignoring a constitutional court ruling that the Minister of Police is not responsible for the hiring and firing of the independent directorate head, writing personally to McBride to inform him of the non-renewal of his contract.

McBride rightfully informed Cele that it was Parliament's police committee which needed to make recommendations on the renewal and not the minister.

McBride, the Helen Suzman Foundation and Corruption Watch challenged Cele's decree before an agreement was reached in the High Court that the portfolio committee was indeed vested with the power to appoint or renew.

In February the Police Portfolio Committee met to do just that.

But in what was a clearly coordinated attack on McBride ANC committee members ensured Cele's will was done. The nature and absurdity of some of the attacks on McBride by ANC committee members was noted in almost every report on the process.

March 31, 2019 arrived and McBride was out of a job. In the meantime, the portfolio committee appointed Victor Senna, as acting Executive Director.

If the police committee thought McBride was going to allow it to mash their metaphorical jackboot in his face they had another thing coming. McBride applied to the High Court court to review the decision by the Portfolio Committee not to appoint him.

In the application, McBride relies on the Promotion of Administrative Justice Act 3 of 2000 alternatively, the Constitutional principle of legality.

He cited five instances which he said proved that the committee had been biased in taking its decision not to renew his contract.

These were that the committee did not have an open mind but were acting under political “dictation or undue political influence”; that the committee did not act in compliance with its constitutional duty to protect the independence of IPID; that the decision by the committee was not “substantively rational”; and lastly, that the decision was procedurally unfair as McBride was not allowed an opportunity to deal with evidence.

Senna has subsequently sought a legal opinion from Gilbert Marcus, SC, with regard to McBride's submission with regard to the obvious bias of the committee.

“Mr Senna wishes to make an informed decision regarding the position of IPID in relation to the McBride application. More he seeks my advice, based on the information currently available, as to whether IPID has reasonable prospects of success in the McBride application,” Marcus wrote in his opinion dated 26 March 2019.

The Portfolio Committee has yet to file its response to McBride's application.

Marcus told Senna that: “It is clear from my consideration of the matter that I am of the view that Mr McBride enjoys reasonable prospects of success in his application. Although this answers the question put to me for consideration, there is the additional aspect of the stance that IPID itself should adopt in the proceedings.”

To be held in mind is the fact, said Marcus, that IPID had brought the application “because it has an interest in ensuring that whomever holds the position of Executive Director is appointed following a process that is lawful, constitutional and protects IPID’s independence”.

And then the clincher by Marcus that will test Senna's resolve – “were IPID merely to take a passive approach to what appears to be a threat to the independence of IPID, it would be in breach of its obligation under section 165(4) of the Constitution”.

Will Senna accept Marcus' advice. Time will tell.

So what does this mean?

Might McBride find himself back in the IPID saddle after all?

Perhaps not for the next twelve months at least as he takes up a new job kickstarting a new ethics unit in the Department of Public Service and Administration.

Daily Maverick has learned that an announcement is imminent that McBride will head the Ethics, Integrity and Disciplinary Technical Assistant Unit established in terms of the Public Administration Management Act for 12 months while the position will be advertised.

Whether McBride returns at head of IPID later is open to conjecture. What will be left cast in stone, however, is that the fair appointment of whoever eventually heads IPID is made respecting the letter of Constitutional Law. DM