Press Release: HSF Appeals High Court Order sanctioning IPID agreement

Despite numerous judgments on the illegality of such agreements, the respondents agreed privately, on a mechanism for the renewal of the Executive Director's tenure via a settlement agreement. Which was made an order of court by the Honourable Madam Justice Hughes on 12 February 2019. In so doing, these parties have applied, and the High Court has endorsed, a constitutionally impermissible interpretation of section 6(3)(b) of the IPID Act.

This private agreement, and the Court’s endorsement, concentrate the power of renewal in the Minister and the Committee, and expose IPID to political interference, or the perception of such interference. The HSF believes that Madam Justice Hughes’ interpretation is, therefore an unlawful one.

The legality of the agreed interpretation was never ventilated in open Court. Indeed, there was no argument on any interpretation of the relevant section (6(3)(b)) of the IPID Act. No written heads of argument were filed by either; the Minister, the Committee or Mr McBride to explain why their agreed interpretation was constitutionally compliant. Instead, the High Court rubberstamped the agreement as a consent order, without any consideration as to its constitutionality. It did so despite efforts by the HSF, which had been admitted as an amicus in the matter.

The HSF’s Heads of Argument can be found here.

Francis Antonie
francis@hsf.org.za
083 408 7943

Rafael Friedman
rafael@hsf.org.za