Africa-Press – South-Africa. National deputy police commissioner for crime detection Lt-Gen Shadrack Sibiya says police commissioner Gen Fannie Masemola admitted in court papers he violated police discipline rules by ordering him to “stay at home” pending an investigation.
This was contained in a replying affidavit filed by Sibiya in the Pretoria high court on Tuesday in his challenge to set aside his suspension.
In July, Masemola asked Sibiya to take a leave of absence after explosive allegations made by KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi. Sibiya was accused of taking over dockets from the political killings task team to his office, where they had allegedly been neutralised.
The suspension prompted Sibiya to launch the court application.
In his reply to Masemola’s answering affidavit, Sibiya said he was asking the court to declare Masemola’s decision to direct him to “stay at home, pending an investigation” to be void or set aside.
“I demonstrated the national commissioner was obliged, in terms of my employment contract and under law, in terms of the South African Police Service (SAPS) Act and the attendant regulations, to comply with the SAPS disciplinary framework as set out in the discipline regulations,” Sibiya said.
The discipline regulations governed all disciplinary action against SAPS employees, Sibiya said. Masemola’s decision to direct him to stay at home pending an investigation, which he took as part of disciplinary steps relating to misconduct allegations against him, fell to be set aside or declared unlawful because the national commissioner did not comply with the regulations.
“In his answering affidavit, the commissioner conceded he did not comply with, or even have recourse to, the discipline regulations when he made the decision to instruct me to stay at home,” Sibiya said.
Masemola argued that despite being barred from work, he would only afford Sibiya to make representations on why he should not be barred from returning to work after a preliminary investigation is completed.
“The concession is dispositive as it renders the decision unlawful and a breach of my employment contract,” Sibiya said.
He said Masemola tried to overcome the unlawfulness of his decision by arguing he was not obliged to comply with the discipline regulations as he acted in terms of the constitution.
“The essential facts of my case in the founding affidavit are that the national commissioner failed to follow the prescribed procedure. He has conceded he did not.”
Sibiya said the only further issue for the court to decide, based on Masemola’s answer, was whether the national commissioner or police service were entitled to depart from the legal prescripts pertaining to discipline of SAPS members.
He accused Masemola of, among other things, having run a biased process in which he was a complainant, an implicated party and the decision-maker.
“He has effectively suspended me based on untested allegations which he heard in a media briefing and without providing me the mandatory opportunity to make representations,” Sibiya said.
Sibiya said the allegations centred around an allegation made by Mkhwanazi that he gave instruction that the political killings task team dockets be handed to him.
“I demonstrated in the founding affidavit that Lt-Gen Mkwhwanazi’s allegations are refutable by objective evidence. I demonstrated that all instructions I issued and steps I took regarding the disbandment of the task team I received from the national commissioner’s office.”
Sibiya claimed Masemola’s answer to his explanation in the founding affidavit was less than candid and exposed his intention to distance himself from the disbandment process.
“In his answering affidavit, the national commissioner appears to back pedal from attributing to me the instruction to withdraw dockets from the task team. This change in stance and approach shows how my rights are being prejudiced.”
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