The Pretoria high court has now cleared the way for the suspension of deputy national police commissioner for crime detection, Lt-Gen Shadrack Sibiya, after rejecting his bid to return to work on Tuesday.
Sibiya approached the court seeking relief after national police commissioner Gen Fanie Masemola ordered him to “stay at home” following explosive allegations made by KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi about alleged rot in the police service.
Sibiya was accused of taking dockets from the political killings task team to his office, where they had been kept.
In a scathing judgment which dismissed Sibiya's bid to interdict disciplinary hearing against him and declare Masemola's order unlawful, the full bench of the court — comprising judges N Davis, P Mngqibisa-Thusi and GN Moshoana — found the decision was rational and proportional under the circumstances.
In dismissing his application, the court delivered a crushing blow to Sibiya, detailing that his lawyer's attempts to elevate the stay at home instruction by Masemola to a suspension was not supported by evidence.
This contention misconstrues the function and powers of the commission. Moreover, the contention impermissibly subjugates disciplinary proceedings to the proceedings before the commission.
— The judgement
The court found that the declaratory relief sought by Sibiya could not be granted because the instruction issued for his stay at home was meant to give space for an investigation which has since been concluded.
“The investigation was complete, and the decision has been taken to initiate disciplinary proceedings against the applicant [Sibiya],” read the judgment in part. The next step, namely, to implement a suspension or not was halted by way of applicant's own urgent application. Once this is dealt with, the suspension of the applicant and the disciplinary processes provided for ... will take its course.”
Sibiya had argued that the stay at home instruction had prejudiced his safety, but the court found Masemola had complied with obligations to provide security and will continue to do so in accordance with accepted policies.
The court said Sibiya did not have a right to have disciplinary proceedings halted or suspended and that the right he sought to assert was self-constructed.
On July 13, President Cyril Ramaphosa established the Madlanga commission of inquiry, which starts its work next week, to look into Mkhwanazi's allegations of corruption in the police. The full bench of the court said Sibya made overboard and unfounded allegations to the effect that Masemola was contemptuous of the proposed commission.
“The making of such allegations without foundation amounts to vexatious litigation,” said the court.
The judges further said Sibiya had also contended that Masemola was biased against him and that this should be the reason why the commission would be the appropriate body to discipline him.
The court ruled that the commission was neither a court or a disciplinary tribunal. It found that there was no evidence that proceeding with disciplinary processes against Sibiya would taint any work of the commission.
“This contention misconstrues the function and powers of the commission. Moreover, the contention impermissibly subjugates disciplinary proceedings to the proceedings before the commission,” read the judgement.
The Madlanga commission has announced that it intends calling Mkhwanazi as its first witness when it starts hearing on September 17th. This however has put Mkhwanazi on a collision course with some members of parliament's ad hoc committee also set up to investigate his allegations of political interference and corruption in the criminal justice system.
The EFF has accused Mkhwanazi of prioritising the Madlanga commission when he indicated he was unavailable to appear before the ad hoc committee until his engagement with commission of inquiry was complete.
EFF leader Julius Malema said the two forums should be treated as separate matters.
“We must make one point very clear, we are not going to be told by Mkhwanazi what must happen and what must not happen,” Malema said. “If we are looking for him, we must find him, and he's going to make himself available. We are going to make him available. He's the one who started this mess, and he's going to have to take responsibility,” Malema said.
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