OPINIONISTA: Law allowing for extension of McBride's term of office probably unconstitutional By Pierre De Vos pierredevos
on the basis of his involvement in the armed struggle against apartheid, and speculated that his “abrasiveness and his obvious political clout may help to embolden IPID to ‘go after’ the ever-increasing number of so-called rogue cops within the SAPS”. Little did I know at the time that McBride would fall out spectacularly with the Minister of Police and with governing party MPs, allegedly for asking uncomfortable questions about corruption related to the 2017 ANC elective conference.
Recall that IPID was created to give effect to section 206 of the South African Constitution, which requires national legislation to establish anpolice complaints body.
The Constitutional Court was not asked to consider the constitutionality of section 6 of the IPID Act, the section on which McBride now relies to argue that his term of office should have been renewed. This section states that once the appointment is confirmed “such appointment is for a term of five years, which is renewable for one additional term only”.
As the Constitutional Court has ruled that the threshold for satisfying the independence in respect of IPID is arguably more stringent than the requirements that apply to the Hawks, one could argue that a failure to renew McBride’s contract would only be rational if there was either a finding by the NA that he was no longer a fit and proper person, or if there was a finding that he was incompetent, guilty of misconduct or suffered from incapacity.
the Constitutional Court noted that it had previously ruled with reference to the head of the Hawks that:[a] renewable term of office, in contradistinction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures.”including the existence of renewable terms of office
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