The “stay at home” instruction by national police commissioner Gen Fannie Masemola to his deputy Lt-Gen Shadrack Sibiya was not unlawful, the full bench of the Pretoria high court held on Tuesday.
Sibiya also does not have a right to have disciplinary proceedings halted or suspended.
The court made these observations when it dismissed the application by Sibiya, who is deputy national commissioner for crime detection, to set aside the stay at home instruction and thereby return to work. Sibiya had asked the court that Masemola's decision to direct him to stay at home pending an investigation be declared as unlawful and of no force or effect.
Sibiya also sought an order that pending the conclusion of a judicial commission of inquiry into criminality, political interference and corruption in the criminal justice system, Masemola be interdicted from instituting parallel proceedings against him which included suspending, investigating and/or disciplining him.
Masemola had on July 15 ordered Sibiya to “stay at home” and said his office was “gravely alarmed” by the allegations that had been made at a press conference by KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi.
Mkhwanazi alleged Sibiya obstructed justice, stalled investigations into political assassinations and organised crime and shielded politically connected suspects by taking control of more than 120 sensitive dockets. Mkhwanazi said that was done without the authority of the national or provincial commissioner.
Summarising his case, the court in its judgment said Sibiya argued that the conduct in respect of which he would be charged in a disciplinary hearing “intersects” so closely with the terms of reference of the commission of inquiry.
Judge Norman Davis, in a judgment with which two other judges concurred, said Sibiya claimed that the commissioner simply had no power to issue the stay-at-home instruction.
The contention was that as no “stay-at-home order” had been provided for in the police discipline regulations, Masemola had no power to issue such an instruction.,
“What is clear from the facts is that at the time when the order was given in the form of an instruction, the commissioner did not purport to act in terms of the discipline regulations. The instruction was neither seen as nor implemented as a suspension,” Davis said.
On behalf of Masemola, it was argued that not each and every operational order was codified in either of the sets of regulation. Masemola said to do so would be impractical, if not impossible. It was argued that the stay-at-home instruction was no more than an instruction to a senior officer to keep away from the “scene of the crime” so that he was not further implicated or embarrassed by the investigation and that the investigation proceed unhindered.
“It was contended on behalf of the commissioner that he had demonstrated that the instruction was suitable, necessary, reasonable, relevant, rational and proportional under the circumstances. We agree.”
Davis said the attempts by Sibiya's counsel to elevate the stay-at-home instruction to a suspension was not supported by evidence.
“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. We therefore conclude that instruction was not unlawful.”
The court also said Sibiya did not have a right to have disciplinary proceedings halted or suspended.
The court said the “right” which Sibiya sought to assert was a self-constructed right.
“He claims that everyone implicated by the allegations which form the subject matter of the commission has a right to a free and fair hearing before the commission.”
The court said this assertion misconstrued the of nature of the commission. Though the commission may, at the end of its conclusion of its investigation, make recommendations to the president regarding disciplinary steps, the commission was neither a court nor a disciplinary tribunal.
The court said Sibiya sought to contend that separate disciplinary proceedings against him for disobeying lawful instructions issued by his superior would not only interfere with the work of the commission, but obstruct it.
“There is no factual basis for this assertion. Simply put, the disciplining of the applicant and the work of the commission are two different things, even if the applicant's motive for disobeying an order may be of interest to the commission.”
The court found Sibiya had not established a right to have the envisaged disciplinary proceedings against him halted, suspended or stayed.
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