According to Masemola’s legal team, Sibiya would return to his duties if no suspension is imposed.
National Police Commissioner Fannie Masemola has defended his decision to place Deputy National Police Commissioner Shadrack Sibiya on a leave of absence.
The two senior officers faced off in the Gauteng High Court in Pretoria on Wednesday, where Sibiya sought reinstatement and an interdict to block any further disciplinary action.
Masemola’s decision to remove Sibiya from duty followed corruption allegations by KwaZulu-Natal (KZN) Police Commissioner Nhlanhla Mkhwanazi, who accused him of being a criminal.
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Mkhwanazi further claimed Sibiya played a leading role in the disbandment of the South African Police Service’s (Saps) political killings task team.
Sibiya has, however, denied the accusations and contended that the decision to place him on leave was unlawful.
He has since asked the court to review and set aside Masemola’s actions.
Masemola defends Sibiya’s leave of absence
Advocate Stefan Coetzee, counsel for Masemola, opened his submissions after the lunch adjournment, stressing that the court was not tasked with determining the truth of Mkhwanazi’s allegations.
“What is clear and uncontested is that they are very serious. They were so serious that it caused the president to appoint the judicial commission of inquiry and to take the police minister [Senzo Mchunu] out of his post.
“In that light of the seriousness, one would have expected the commissioner of police to take these allegations seriously,” he said.
READ MORE: Sibiya says he still respects Masemola despite court battle over ‘stay-at-home’ decision
Coetzee argued that Sibiya’s leave of absence was never intended to be a suspension under Saps’ disciplinary regulations.
“We don’t have a codified legal system where everything in regulated by a law or regulation. It is an impossibility in the police structure to do that.”
He described Sibiya’s urgent application as “completely premature”.
“In fact, it is done with the exclusive intention of stopping the investigation against him,” Coetzee said.
‘This is not a punishment’
One of the three presiding judges asked whether a notice of intention for possible suspension — issued to Sibiya by Masemola last month, requiring him to make representations — could affect his leave of absence.
Coetzee responded: “In the status he has been in prior to a suspension in terms of the regulations, he is in normal employment, just staying out.
“He is not being punished; this is not a punishment. It was merely to take him away, and there is a good reason for that… to allow a transparent and accountable investigation.”
Coetzee added that Sibiya would resume his duties if the outcome is not a suspension.
“Once the investigation is finalised to the conclusion where decisions can be made whether or not to institute a disciplinary hearing against him and to consider whether or not to suspend him, that portion of the preliminary investigation is concluded. That’s where we are now.”
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Coetzee rejected arguments by Sibiya’s lawyer, Advocate Kameel Premhid, that Masemola was acting as “judge, jury and executioner”.
“It is clearly stated in his answering affidavit that an impartial arbitrator will be appointed to deal with this matter.
“To assume that the national commissioner will hijack this process for his own means or ideas to act as an executioner as well is simply unfounded. It is not even speculation; is purely unfounded.”
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Coetzee further insisted that Saps could not relinquish its responsibility to enforce discipline within the police.
“What the applicant wants the police to do is to stand back and say ‘well we have got this duty to manage and control the police service, but this is a hot potato so the [Madlanga] commission must rather take this’,” Coetzee argued.
The court has reserved judgment in Sibiya’s urgent application.
