The Pretoria High Court has dismissed an urgent application brought by Lieutenant General Shadrack Sibiya, the Deputy National Commissioner: Crime Detection, seeking to declare a “stay-at-home” instruction issued by National Police Commissioner, General Fannie Masemola, unlawful and to halt disciplinary proceedings against him.
The judgment, delivered on Tuesday by Judge Norman Davis, with Judges Nomonde Mnggibisa-Thusi and Graham Moshoana concurring, found that Sibiya had failed to establish the legal grounds for the relief sought.
Sibiya challenged an instruction issued by the National Commissioner of Police, General Fannie Masemola, directing him to “stay at home” as an investigation into his alleged misconduct was conducted.
Sought to stop disciplinary proceedings
According to Sibiya, the commissioner’s instructions exceeded his powers. And an interdict was sought to stop disciplinary proceedings until a judicial commission of inquiry into corruption, political interference, and criminality was completed.
Sibiya argued that the “stay-at-home” instruction was unlawful. He said it was not outlined in his employment contract or the South African Police Service Discipline Regulations. The instruction amounted to a “disguised precautionary or even punitive suspension”, according to him.
In his founding affidavit, Sibiya stated: “The disciplinary regulations do not contemplate or empower the National Commissioner to direct me or any other SAPS employee to stay at home pending an investigation or under any other circumstances at all.”
However, Masemola argued the instruction was a reasonable operational order. He said it is intended to protect witnesses and ensure the integrity of the investigation.
He stated: “I deny that I am not empowered to take decisions and give orders in accordance with my mandate to exercise control over and manage the police service. This will include my authority to order a preliminary investigation and the authority to order a senior police officer to stay at home to ensure a fair and transparent preliminary investigation.”
Order neither unlawful nor a suspension
According to the court, the “stay-at-home” instruction was neither unlawful nor a suspension. Davis stated: “The stay-at-home instruction was suitable, necessary, reasonable, relevant, rational. And it was proportional under the circumstances.”
The court emphasised that commanders could issue operational orders as circumstances demand. Even if the Discipline Regulations do not explicitly codify them.
“The fact [that] the Discipline Regulations do not make provision for such an order does not mean that such an instruction by a senior officer to a subordinate cannot be made,” the judgment read.
Moreover, the court noted that Sibiya’s remuneration, employment, or security was not affected by the order.
“The instruction was no more than an instruction to a senior officer to keep away from the ‘scene of the crime’ so that he is not further implicated or embarrassed by the investigation and that the investigation may proceed unhindered,” the court stated.
The court declined to grant Sibiya’s request for a declaratory order. It cited mootness and the discretionary nature of declaratory orders.
As the investigation was complete and disciplinary proceedings were underway, the court noted the instruction had already served its purpose.
“There is no point in granting a declaratory order in respect of something which has already been overtaken by events and which will serve no further purpose,” the court stated.
No bearing on subsequent proceedings
Further, the court rejected Sibiya’s argument that the instruction “tainted” subsequent disciplinary proceedings.
In a similar manner, Sibiya’s application for an interim interdict was denied. According to the court, he did not establish the requirements for such relief. This is including a prima facie right, a reasonable expectation of irreparable harm, the absence of other suitable remedies, and that the balance of convenience favoured him.
As a result, the court ruled that Sibiya had no right to halt disciplinary proceedings.
Davis stated: “The applicant does not have a right to have disciplinary proceedings halted or suspended. The ‘right’ which the applicant seeks to assert is a self-constructed right.”
The court also rejected Sibiya’s claim that disciplinary proceedings would obstruct the work of the Judicial Commission of Inquiry.
“The disciplining of the applicant and the work of the commission are two different things. Even if the applicant’s motive for having disobeyed an order may be of interest to the commission.”
Employer-employee relations
The court found that the balance of convenience favoured the commissioner. It emphasised the importance of expediency in employer-employee relations.
Davis stated: “When one weighs up the possible indeterminable period of suspension of disciplinary proceedings, should the applicant’s contentions be upheld, against the benefits of finality to be obtained by expedient disciplinary proceedings, the latter clearly trumps the former.”
Additionally, the court noted that the commissioner had taken steps to ensure Sibiya’s safety. This includes static and transit security, and also that Sibiya had withdrawn the protection team.
“The South African Police Service has complied with its obligation to provide security to the applicant. And will continue to do so in accordance with accepted policies,” the judgment read.
The court rejected Sibiya’s petition for immunity from adverse cost orders under the Biowatch principle, which shields public interest litigants from cost consequences. It ruled that Sibiya’s application did not constitute public interest litigation, and criticised his overbroad and unfounded allegations.
Vexatious litigation
Davis stated: “No law or any ‘state conduct’ has been challenged on a constitutional basis by the applicant. His assertion was simply that the commissioner had overstepped the bounds of his powers in the context of a simple disciplinary proceeding.”
Furthermore, Sibiya’s allegations of contempt against the commissioner amounted to vexatious litigation, the court said.
“The making of such allegations without foundation amounts to vexatious litigation,” the judgment read.
The court concluded: “In the premises, the court declines to grant a declaratory order as claimed by the applicant. And it finds that the applicant has not satisfied the requirements for an interim interdict. Neither of the two sets of relief can therefore be granted.”
