The full bench (three judges) of the North Gauteng High Court in Pretoria High dismissed the urgent application by Deputy National Police Commissioner Lieutenant-General Shadrack Sibiya to review and set aside the decision to place him on leave of absence.
The ruling was made on Tuesday after Sibiya was ordered to stay at home by Police Commissioner Fannie Masemola.
In court, Sibiya’s legal representative advocate Kameel Premhid, argued before the full bench that Masemola’s order for Sibiya to stay home “looks and smells like a suspension”.
He also questioned Masemola’s claim that the order was given as to save Sibiya embarrassment while claims of misconduct were being investigated against him.
According to Masemola, the investigation has been concluded, and an independent arbitrator will adjudicate in Sibiya’s disciplinary hearing.
Sibiya has asked the court for an order declaring that Masemola’s decision to direct him to “stay at home, pending an investigation” unlawful and for it to be set aside.
Alternatively, Sibiya is seeking an order stating that his stay at home is suspended pending the outcome of the commission.
In addition, Sibiya wants Masemola to be interdicted from instituting parallel proceedings against him, as he argues that it could lead to double jeopardy and unfairness towards him, as the commission is already tasked to investigate the allegations of political interference and corruption levelled against him.
Premhid argued that the terms and reference of the commission include recommending disciplinary procedures against those who are implicated in any wrongdoing. Thus, he said, there is no need for a disciplinary hearing as well.
Premhid told the court that Masemola will be part of the internal disciplinary proceedings against Sibiya if it was allowed to go ahead, which would be untenable, as Masemola will be both accuser, judge, and executioner.
He further argued that Masemola in any event did not have the powers in law to order Sibiya to stay at home. He conceded that the police chief has the power to discipline his members, but as this matter was not an ordinary employer/employee matter, Masemola acted outside his powers, the court was told.
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