Following the Pretoria High Court’s dismissal of Lieutenant General Shadrack Sibiya’s urgent application, National Commissioner of Police General Fannie Masemola is now free to move forward with disciplinary proceedings against his deputy.
The court’s judgment, delivered on Tuesday, clarified the legal framework within which Masemola operates and affirmed his authority to manage the police service, including initiating disciplinary processes.
The case revolved around Sibiya’s challenge to a “stay-at-home” instruction issued by Masemola, which directed him to remain away from his office while an investigation into alleged misconduct was conducted.
Sibiya sought to have the instruction declared unlawful and to halt disciplinary proceedings until the completion of a Judicial Commission of Inquiry into criminality, political interference, and corruption in South Africa’s criminal justice system. The court, however, dismissed his application, paving the way for Masemola to proceed with disciplinary measures.
Masemola’s powers crystal clear
The judgment provided clarity on Masemola’s powers as National Commissioner, which are derived from Section 207 of the Constitution and subsidiary legislation, including the South African Police Act and the Discipline Regulations. The court emphasised that Masemola has the authority to issue operational orders and manage the police service independently, within the bounds of governing legislation.
Judge Norman Davis, delivering the judgment, stated: “The commissioner has a constitutional duty and obligation to exercise control over and manage the police service. He would be failing in his duties if he were not to act against officers who fail to comply with orders.”
The court found that the instruction issued by Masemola was lawful and reasonable under the circumstances. It was intended to ensure the integrity of the investigation and prevent intimidation of witnesses. “The stay-at-home instruction was suitable, necessary, reasonable, relevant, rational, and proportional under the circumstances,” the judgment read.
The court also rejected Sibiya’s argument that the instruction amounted to a suspension, noting that it did not impact his remuneration, employment, or security. “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.
With the court ruling in his favour, Masemola is now expected to proceed with disciplinary action against Sibiya. The Commissioner had already issued a Notice of Intention to Suspend under Regulation 10(2) of the South African Police Service Discipline Regulations, citing alleged misconduct related to Sibiya’s handling of 121 case dockets under the disbanded Political Killings Task Team.
Charges formulated
The notice stated, “You allegedly committed serious misconduct … by contravening Regulation 5(3)(b)(i) … in that you allegedly gave instructions that the case dockets of the political killings task team in KwaZulu-Natal be withdrawn … which resulted in the investigation of the case dockets having been hindered and/or delayed.”
Additional charges of misconduct were also outlined in the notice, including allegations that Sibiya’s actions “detrimentally affect or affected the image of the South African Police Service or bring the SAPS into disrepute.”
The court noted that the disciplinary process would be conducted in accordance with the Discipline Regulations and chaired by an independent officer from outside the province. Masemola himself would not be involved in the disciplinary hearing.
“Any disciplinary process would be processed in terms of the Discipline Regulations and be chaired by an independent officer from outside the province. The Commissioner himself would not be involved in such a disciplinary process,” the judgment read.
Two separate processes
Sibiya had argued that disciplinary proceedings against him should be halted to avoid obstructing the work of the Judicial Commission of Inquiry. He claimed that the allegations against him intersected with the Commission’s terms of reference and that the Commission, rather than a disciplinary tribunal, would be the appropriate body to determine whether disciplinary action should be taken.
The court, however, dismissed this argument, stating, “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.”
The court also rejected Sibiya’s claim that the commissioner was biased against him and conflicted, noting that any such allegations could be raised during the disciplinary hearing itself.
“There is no evidence of any reasonable apprehension that the applicant would not be able to put forward his version before an independent disciplinary tribunal,” the judgment read.
The court found that the balance of convenience favoured Masemola, emphasising 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.”
The court also noted that delaying disciplinary proceedings could undermine the commissioner’s constitutional duty to manage the police service. “Contrary to the principle of expediency in dealing with matters of discipline and maintaining the order of command, the applicant’s contention, if upheld, would result in the disciplinary proceedings against him being suspended for the duration of the Commission’s investigations,” the judgment read.
