In an important ruling on 28 June 2018, the High Court in Pretoria ruled on a case that centred on the question of whether members of the South African Police Service (SAPS) that are the subject of investigations by the Independent Police Investigative Directorate (IPID) should be allowed to investigate members of IPID. In handing down the court’s decision, Judge Neil Tuchten confirmed that such ‘revenge investigations’ by the SAPS are unlawful.
IPID brought the matter to Court when, after IPID initiated two criminal cases against the former National Police Commissioner, Lt Gen Khomotso Phahlane, a police squad from the North West Province was appointed to investigate the same IPID officers involved in the criminal investigations of Lt Gen Phahlane.
All the members of the North West squad are currently subject to IPID investigations. In terms of the Court Order, the North West squad, led by General Ntebo Mabula must be immediately removed from any investigation by the SAPS of any of the members of the IPID investigative team and the Executive Director of IPID, Mr Robert McBride.
Investigations into the North West SAPS members are ongoing and, in light of the judgment, IPID can continue with its investigations without interference by SAPS members who are subject to IPID’s investigations.
The case highlighted the fact that there is legal provision that regulates, in the context of conflicts of interest, the conduct of IPID members toward SAPS members but there is no equivalent provision regulating the conduct of SAPS members toward IPID members. In light of this, the Court laid down a general principle that no member of the SAPS may be involved in any investigation in which the member has a personal, financial or any other interest. The order will remain in effect until such time as a standing order or a regulation is implemented to deal with conflicts of interest between SAPS and IPID.
Jac Marais, Partner at Adams & Adams, and attorney for IPID, confirmed that the judgement further strengthens IPID’s independence in the wake of the Constitutional Court judgment in 2016, that that struck down the Minister of Police’s power to suspend the Executive Director of IPID. “The judgement goes some way to restore the confidence which the public should have that IPID will be able, without undue interference, to investigate complaints against the police fearlessly and without favour or bias. Without enjoying the confidence of the public, IPID will not be able to function efficiently as the public might be disinclined or reluctant to report their cases to it.”
The Court also ordered the SAPS to pay the costs of the litigation and held that the SAPS adopted positions in relation to the application that were unreasonable and unjustified.