21 July 2020
The facts surrounding police minister Bheki Cele’s appointment of Jennifer Ntlatseng as the new head of the Independent Police Investigative Directorate (IPID) suggest that the decision was not subjected to rigorous Parliamentary oversight.
Members of the Portfolio Committee on Policing, tasked to accept or reject Cele’s nomination, were not privy to the recruitment process as it unfolded. Ntlatseng did not appear before the committee for questioning and opposition MPs complained that no independent criteria for vetting the minister’s nomination had been adopted.
The DA’s Andrew Whitfield called the process “fatally flawed” and the Freedom Front Plus’s Pieter Groenewald said that an appointment would be a “political decision, not a merit decision”.
In spite of this, the committee’s majority ANC caucus endorsed Cele’s pick on Wednesday. The deliberations, held via video link, lasted less than two hours. The ANC members provided little justification for their endorsement, but committee chair Tina Joemat-Pettersson threatened to rule opposition members “out of order” if they continued to object to the recruitment and nomination process. ANC members also accused the opposition parties of sexism and politicisation when they did not endorse Ntlatseng.
In a response to queries, Joemat-Pettersson said she was “confident that all information was made available for MPs to make an informed decision.”
Parliament’s rubber-stamping of the police minister’s nomination was exactly the outcome that civil society organisations have sought to avoid during years of advocacy.
These organisations, including the African Policing Civilian Oversight Forum (APCOF) and the Helen Suzman Foundation (HSF), argue that the police watchdog and its head should become legally protected from the potential of political interference by the minister.
Since 2016, their argument has been rooted in a Constitutional Court judgment which found that then police minister Nathi Nhleko’s suspension of IPID head Robert McBride was unconstitutional. It is today widely believed that Nhleko suspended McBride to scupper corruption probes into senior and politically connected police officers.
The court also ruled that the section dealing with the appointment, removal and contract renewal of the IPID head gave the police minister “enormous political powers and control”.
The court’s majority judgement went on:
“To my mind, this state of affairs creates room for the Minister to invoke partisan political influence to appoint someone who is likely to pander to his whims or who is sympathetic to the Minister’s political orientation. This might lead to IPID becoming politicised and being manipulated. Is this compatible with IPID’s independence as demanded by the Constitution and the IPID Act? Certainly not.”
In the McBride case, the court was mainly concerned with the issue of “removal” of the IPID head. It ordered that McBride’s suspension be set aside and that the sub-section of the IPID Act which Nhleko had used to effect it be amended.
It took almost two years for Parliament to publish a draft IPID Amendment Bill for public comment. By then the court-ordered deadline for an amendment to become law was fast approaching. In a series of submissions, civil society organisations and government departments (including IPID itself) argued for a wider review of the IPID Act to entrench the police watchdog’s independence.
Parliament’s portfolio committee on policing largely snubbed these submissions and the IPID Amendment Act of 2019, assented to by president Cyril Ramaphosa in May, kept intact the powerful role played by the minister in the appointment and the contract renewal of the IPID head.
Chumile Sali, an APCOF researcher has been advocating for a wider amendment of the law, says he was dismayed by the fact that MPs did not take submissions from the public into consideration.
“The public participation process was a futile exercise,” he said.
With Cele’s nomination now approved by Parliament, observers are concerned that the minister may manipulate his appointee. While Ntlatseng may not have been party to the controversy of ministerial influence over IPID in recent years, it is the context within which her appointment and her tenure will be judged.
Ntlatseng’s appointment comes off the back of a prolonged leadership vacuum at IPID. The police watchdog has been without a permanent head since Cele refused to renew McBride’s contract in February 2019, a move which is subject to a court challenge by the Helen Suzman Foundation on similar grounds to those McBride used to challenge his suspension in 2015.
This year, the minister missed a legally binding deadline for nominating a new IPID head and enlisted the services of a company called Ultimate Recruitment Solutions to “head-hunt” candidates. Ntlatseng was one of five candidates provided by the company to a panel chaired by Cele.
In a letter affirming his nomination of Ntlatseng to the speaker of Parliament, Cele laid out the panel’s criteria for shortlisting and interviewing candidates. The panel “unanimously” nominated Ntlataseng as the best candidate, Cele said.
He went on to outline her qualifications, which include a law degree from UNISA and 21 years’ experience at the Gauteng Department of Community Safety, where she was eventually promoted to the Director of Community Police Relations. She left the department in 2017. Neither Ntlatseng’s LinkedIn profile nor Cele’s letter of nomination give clarity on her employment status between 2017 and 2020.
Gareth Newham, the Institute for Security Studies’ head of the Justice and Violence Prevention Programme, worked with Ntlatseng in the Gauteng Community Safety Department between 2006 and 2009. He expressed concern that her appointment process “has been so opaque”. But, he also said: “She came across as hard working, dependable and tenacious … She certainly has insights into SAPS, the challenges they face and community perceptions of the police – at least in Gauteng.”
An understanding of police community relations may be a useful quality for the head of the IPID. The vast majority of the directorate’s cases originate from the use of force – lethal or otherwise – at the literal point of contact between the police and the public.
But, the main challenges that Ntlatseng inherits relate to the management, quality and continuity in IPID’s investigations, both those of its high-level corruption task team and those at its provincial offices. There is no investigative experience described in her resumé, as summarised by Cele.
The continuity of IPID’s high-level investigations, unfinished business from McBride’s time, is today again plagued by concerns over political interference. In March, Cele’s second incoming acting IPID head immediately suspended head of investigations Matthews Sesoko, who oversaw these cases. This, former IPID insiders said, was a rerun of the leadership purge of 2015, when Sesoko was suspended shortly after McBride, apparently also at the behest of then minister Nhleko.
Just days after Sesoko’s suspension this year, Mandla Mahlangu, IPID’s lead investigator on a corruption probe into former police commissioner Khomotso Phahlane, was murdered at his home outside Pretoria. City Press reported that one of the alleged killers confessed to being a hired gun paid for by police to assassinate Mahlangu.
Then in May, Viewfinder reported that IPID had pulled two investigators – Mahlangu’s colleagues – from a corruption task team working with the National Prosecuting Authority (NPA). The investigators had both been working on a probe of Phahlane.
At IPID’s provincial offices, where a massive annual case load (comprising allegations of police assault, torture, killing and rape) is handled, things are equally fraught. Here, the challenges relate to funding shortfalls, undermining tactics by police officers and internal dysfunction in IPID’s management of investigations.
Last year Viewfinder exposed that the watchdog’s provincial offices had a long history of closing cases prematurely to inflate performance statistics, while obstructing justice for victims. This year, police abuses and impunity during Covid-19 lockdown enforcement brought renewed scrutiny of the police watchdog’s processes.
In handing down judgement in the case related to the lockdown murder of Collins Khosa, Judge Hans Fabricius wrote that “defects” at IPID can be gleaned from its own Annual Performance Plan.
This year, APCOF have been in consultations with IPID to help improve its system for managing cases and developing new “impact” orientated performance measures.
Over the five years of her tenure, Ntlatseng could do well to champion the implementation of such a system, continue existing corruption probes and pursue new ones. Critics tempted to write off her tenure before it starts should recall that before he was hailed as an anti-state capture stalwart, McBride’s appointment was also widely slammed by opposition parties.
Unlike McBride, Ntlatseng is now legally protected from the whims of the minister. The recent amendments to the IPID Act, minimal as they were, means that she at least can’t be fired by him if she goes after corrupt and politically connected police top brass.