Phiyega ‘should be fired’ for violating the Constitution
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.