Phiyega ‘should be fired’ for vi­o­lat­ing the Con­sti­tu­tion

CityPress - - News - ABRAM MASHEGO abram.mashego@city­press.co.za

Ev­i­dence lead­ers ap­pointed by Pres­i­dent Ja­cob Zuma have ac­cused sus­pended na­tional po­lice com­mis­sioner Riah Phiyega of vi­o­lat­ing the Con­sti­tu­tion – mean­ing she should be fired.

This is con­tained in the ev­i­dence lead­ers’ state­ment of case, which was sub­mit­ted to the Claassen board of in­quiry. The board was tasked with in­ves­ti­gat­ing Phiyega’s fit­ness to hold of­fice fol­low­ing damn­ing find­ings against her by the Marikana Com­mis­sion of In­quiry, led by re­tired Judge Ian Far­lam.

The board of in­quiry, which was closed last week, will re­con­vene on June 1, when the ev­i­dence lead­ers will out­line their case.

The ev­i­dence lead­ers, led by Is­mail Jamie SC, and which in­cludes ad­vo­cates Tha­bani Ma­suku and Dei­dre Ku­se­vit­sky, will ar­gue that Phiyega is guilty of mis­con­duct, is un­fit to hold of­fice and is un­able to carry out her du­ties as head of the coun­try’s po­lice. “It is sub­mit­ted that it has been es­tab­lished that the na­tional com­mis­sioner has acted in breach of the Con­sti­tu­tion and the law, in­clud­ing the [po­lice’s] code of con­duct,” the con­clud­ing para­graph reads. Ac­cord­ing to the ar­gu­ment con­tained in the 122-page doc­u­ment, the ev­i­dence lead­ers will ar­gue that Phiyega made “in­ac­cu­rate state­ments” in a re­port pre­pared for Zuma, which they al­lege is ev­i­dence enough of her lack of fit­ness to hold of­fice. The let­ter, how­ever, is not at­tached to the rest of the ev­i­dence. City Press un­der­stands that the con­tents of the let­ter Phiyega sent to Zuma have ex­ac­er­bated her le­gal prob­lems. In the state­ment of case, Phiyega is quoted as hav­ing told Zuma in her let­ter that Far­lam’s find­ings can only be re­garded as “ma­li­cious in its con­tent of scope”. She is fur­ther said to have ac­cused the “judge, who is ex­er­cis­ing ju­di­cial, or at least quasi-ju­di­cial, func­tions at the ap­point­ment of the pres­i­dent of the re­pub­lic, of mal­ice”. This, the state­ment says, “is a se­ri­ous charge, which, if un­war­ranted, re­flects ad­versely on the of­fice and judg­ment of the per­son mak­ing such charge”.

How­ever, doc­u­ments sub­mit­ted by Phiyega’s le­gal team show that they will ar­gue in their sub­mis­sion be­fore the re­con­vened in­quiry that ev­i­dence lead­ers are il­le­gally ex­pand­ing their terms of ref­er­ence in their case against her.

Phiyega’s sub­mis­sion ar­gues that she did not break any con­di­tion of her of­fice and chal­lenges the ev­i­dence lead­ers to prove that she did.

She fur­ther states that “the prin­ci­ples against which to mea­sure the con­duct of the na­tional com­mis­sioner and her fit­ness to hold of­fice is not spelled out in the SA Po­lice Ser­vice Act.

“How­ever, the in­quiry into the fit­ness of the na­tional com­mis­sioner to hold of­fice arises only if she is guilty of mis­con­duct or her ca­pac­ity to per­form her du­ties is at is­sue and she is found to be in­ca­pac­i­tated.” Phiyega also ar­gues in her let­ter to Zuma that she was within her rights to de­fend her­self in the light of Far­lam’s find­ings. Judges, she states, are not “im­mune” from crit­i­cism, and she states that she has al­ready started a le­gal process be­fore the North Gaut­eng High Court, in which she is seek­ing to nul­lify Far­lam’s find­ings. Phiyega’s court sub­mis­sion al­ludes to 113 in­stances in which the re­tired judge al­legedly copy-and-pasted the heads of ar­gu­ments from his own ev­i­dence lead­ers ver­ba­tim into his judg­ment. In March, in a case brought to the Con­sti­tu­tional Court by the Eco­nomic Free­dom Fight­ers to com­pel Zuma to re­pay some of the state money spent on ren­o­va­tions at his pri­vate home in Nkandla, the court ruled that Zuma had him­self “acted in a man­ner in­con­sis­tent with” the Con­sti­tu­tion.

Ja­cob Zuma

Riah Phiyega

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