Gauteng Hawks boss Sibiya's suspension 'unconstitutional'

The court also declared invalid the appointment of Elias Dlamini to replace Shadrack Sibiya (pictured) as acting Gauteng boss of the Directorate for Priority Crime Investigations. (Paul Botes, M&G)

The court also declared invalid the appointment of Elias Dlamini to replace Shadrack Sibiya (pictured) as acting Gauteng boss of the Directorate for Priority Crime Investigations. (Paul Botes, M&G)

The suspension of Gauteng Hawks boss Major-General Shadrack Sibiya was unconstitutional, the high court in Pretoria ruled on Friday. Judge Elias Matojane said the suspension served on Sibiya in January was invalid and unlawful.

The court also declared invalid the appointment of Major-General Elias Dlamini to replace him as acting Gauteng boss of the Directorate for Priority Crime Investigations (DPCI).

In court papers, Sibiya accused the acting national head of the Hawks, Major-General Berning Ntlemeza, of being motivated by the desire to take revenge on behalf of his “ally”, suspended police crime intelligence head Lieutenant-General Richard Mdluli.

Ntlemeza suspended Sibiya pending an investigation into his alleged role in the illegal rendition of Zimbabweans to that country’s police in 2010. Sibiya claimed in an affidavit that the Independent Police Investigative Directorate (Ipid) had exonerated him from any involvement in the rendition and he did not know why he was suspended.

Reputational harm
  The suspension of senior officials in crime fighting agencies causes significant reputational harm, Matojane said.

“The suspensions have a negative impact on public confidence and the rule of law, and importantly have the unintended consequence that the employee suffers palpable prejudice to his reputation and advancement,” he said.

“It follows therefore, in my view, that employees should only be suspended pending a disciplinary hearing only if there are compelling reasons and the suspension should be a last resort.”

Matojane further said Ntlemeza was fully aware of the Ipid investigations initiated in February 2012.
The Ipid probe was submitted to the National Prosecuting Authority for a decision.

“Ipid has advised the applicant [Sibiya] in writing that it did not recommend that he should be prosecuted or suspended due to lack of evidence in the commission of the alleged offences,” said Matojane.

“Third respondent [Ntlemeza] was repeatedly challenged to produce the Ipid and the integrity unit reports and has refused to take the court and the applicant [Sibiya] into his confidence by making the reports available because they vindicate the applicant.”

The judge ordered Ntlemeza to pay Sibiya’s legal costs. Hawks spokesperson Brigadier Hangwani Mulaudzi said the police had a “very serious case” against Sibiya.

Public will know
  “In due time the public will know what is going on. We are dealing with senior counsel. There is certain information that we have said we are not putting in the public arena for now,” said Mulaudzi. “There are other cases that we are looking at. We will be able to put these matters in front of everyone so that they know what we are talking about.”

Last month, another high court judge ruled that Police Minister Nkosinathi Nhleko’s decision to suspend Hawks boss Anwa Dramat was invalid and unlawful. “The order which I make is the following: It is declared that the decision of the minister of police to suspend Lt-Gen Anwa Dramat, the national head of the DPCI, is unlawful and invalid,” Judge Bill Prinsloo found.

“It is declared that the decision of the minister, appointing Maj-Gen Berning Ntlemeza as acting national head of the DPCI is unlawful and invalid. That decision is set aside.”  Earlier this month, the High Court in Pretoria dismissed Nhleko’s application for leave to appeal the overturning of Dramat’s suspension.

  The court found in favour of the Helen Suzman Foundation, ordering that Hawks boss Anwa Dramat be reinstated and that an earlier order by Judge Bill Prinsloo remain in force throughout the appeal process.

Without this court order to uphold a previous judgment, the status quo came into effect once an appeal was launched. That meant that Dramat remained suspended and unable to return to work until a court ruling on the appeal. The foundation said in court documents that it was concerned that changes could be made in Dramat’s absence by Ntlemeza, that could not be overturned if Dramat was reinstated on appeal.

“It’s a resounding victory for the Constitution and defence of the rule of law,” the foundation’s director, Francis Antonie, said after the court’s decision. – Sapa, Staff reporter

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