Masemola was not obliged to follow SAPS policy, court told

National police commissioner Gen Fannie Masemola was not obliged to follow police policy when he barred his deputy Shadrack Sibiya from coming to work, his advocate Stefan Coetzee said on Wednesday.

Sibiya’s court case against the SA Police Service (SAPS), which challenges Masemola’s order for him to “stay at home”, was heard by a full bench of the high court in Pretoria.

The order by Masemola was made after he dissolved the KwaZulu-Natal political task team investigating high-profile murders.

Sibiya alleges Masemola’s decision was unlawful because he did not follow SAPS policy in issuing his order.

Coetzee argued Masemola was not obliged to follow SAPS policy because the stay-at-home order was not a disciplinary action.

Coetzee said Masemola had the power to issue directives to police officers which were not necessarily provided for in law or the SAPS policy. 

He further dismissed the argument that the SAPS should not investigate Sibiya and leave it to the commission of inquiry probing allegations of criminal infiltration in the security cluster.

Coetzee said the move would mean the SAPS was stripping itself of its legal power to manage employees and surrendering it to the commission.

He argued Sibiya’s case should continue being investigated by the SAPS and Masemola had the power to take action against him.

Masemola, in his papers, said he barred Sibiya from work because he disobeyed his orders regarding the disbandment of the task team.

The disbandment of the team, under the directive of police minister Senzo Mchunu on December 31, is a focal point which prompted President Cyril Ramaphosa to establish an inquiry to investigate allegations of criminal infiltration in the security cluster. 

In July, KwaZulu-Natal provincial police commissioner Lt-Gen Nhlanhla Mkhwanazi alleged the team was disbanded when it was close to exposing suspects behind high-profile murders in Gauteng.

Advocate Kameel Premhid, representing Sibiya, argued Masemola entangled himself in unlawful procedure when he barred  Sibiya from office “without” any provision in law and his decision should be set-aside. 

He told the court Masemola’s decision was not supported by the constitution or SAPS policy, which made it illegal.

The full bench consisting of judge Graham Moshoana, Nomonde Mngqibisa-Thusi and Norman Davis quizzed him on whether Masemola has no legal powers to discipline Sibiya. 

Premhid, in his answer, cited Moshoana’s judgment on the matter of RAF CEO Collins Letsoalo and argued that because there is no source of power in law for the stay-at-home order Masemola acted outside his legal powers, rendering his decision irrational.

Premhid conceded Masemola did have the legal powers to discipline but the “way he dealt” with Sibiya was unlawful and had no root in law.

Masemola, in his court papers, conceded he did not rely on the SAPS policy and pinned his decision on section 207 (2) of the constitution, which provides for him to “exercise control over and manage the police service in accordance with the national policing policy and the directions of the cabinet member responsible for policing.” 

Premhid argued the constitutional provision was linked to the police disciplinary policy and Masemola’s failure to follow it made his decision unlawful.

He argued Sibiya’s handling of 121 dockets when he disbanded the team should be investigated by the commission because Masemola was not impartial.

The court reserved judgment.

sinesiphos@businesslive.co.za