Crime intelligence bosses lose bids to have suspensions overturned
National crime intelligence boss Lt-Gen Peter Jacobs and five other senior crime intelligence officers will have to foot their legal bills after they lost a high court bid to have their suspensions overturned.
Jacobs, Brig Albo Lombard, Col Isaac Walljee, Col Manogaran Gopal, Maj-Gen Maperemisa Lekalakala, and Col Bale Matamela were all suspended between December 8 and 10 after allegations by the inspector-general of Intelligence of abuse of the secret service account to fraudulently procure personal protective equipment last year.
Instead of accepting their suspension — with full pay — pending an investigation and internal disciplinary process, the top cops decided to take their employer, national commissioner Gen Kehla Sitole, to court claiming his decision to suspend them was unlawful.
They claimed he did not adhere to the Intelligence Services Oversight (ISO) Act in taking the decision.
However, the Pretoria high court found on Friday that not only was Sitole, the second respondent in the matter, entitled to take action against his staff upon being made aware of their alleged misconduct, he was legally obligated to do so.
The officers' suspensions came days after the Inspector-General of Intelligence Dr Setlhomamaru Dintwe, the third respondent in the matter, alerted Sitole to allegations of procurement irregularities on November 27.
According to the judgment, on November 30 Sitole appointed Lt-Gen Francinah Vuma to conduct an internal investigation into the allegations against the senior cops. They were all served with notices of intention to suspend and invited to make written submissions on why they should not be suspended.
A day later, on December 1, police minister Bheki Cele, cited as the first respondent in the case, sent a letter to Sitole stating that the inspector-general must submit a report to him and that until the report has been submitted the suspensions should be halted. On December 4, Cele addressed another letter to Sitole reiterating his position, read the judgment.
Sitole responded that same day explaining that as the accounting officer of the SA Police Service he was initiating a separate process to the one being undertaken by the inspector-general.
He said the steps were necessary in terms of section 40 of the SAPS Act and as the accounting officer the Public Finance Management Act adjoined him to act on allegations of financial misconduct by his employees.
“The steps were taken because there was reasonable grounds to suspect misconduct requiring investigation. Given all the legal requirements were met, it was not within the national commissioner’s powers to hold the matter in abeyance,” read Sitole’s reply to Cele.
On December 13, Jacobs and his fellow officers wrote to Sitole requesting their suspensions to be uplifted — a request which he denied.
Dintwe also wrote to Cele on December 21 commenting on his letters to Sitole. He said that the ISO Act, which mandates the Inspector-General of Intelligence’s office, “does not fetter the national commissioner’s authority in relation to the management and discipline of the SAPS”.
Jacobs and his fellow officers also relied on the argument that the national commissioner did not adhere to section 7(7) of the ISO Act charging that for this reason their suspensions were unlawful.
They claimed that Sitole may only have acted against them once the inspector-general filed a report to the minister.
But high court judge AJ Minnaar found that their interpretation was wrong and that the act did not preclude Sitole from acting until such a report was furnished to the minister.
“The interpretation by the applicants would lead to impractical consequences, or that will stultify the broader operation of the legislation,” said Minnaar.
He also said that it was Sitole’s prerogative as the employer to initiate investigations and disciplinary actions against his employees.
“The national commissioner is obliged by section 51 read with section 86 of the Public Finance Management Act (PFMA) to take appropriate action in cases of procurement irregularities and flouting of treasury regulations,” read the judgment.
“For the applicants to allege otherwise would defeat the whole purpose,” he said.
“The interpretations advanced by the applicants further deprives the national commissioner of his powers, undermines his prerogative on matters of discipline in the employment realm, undermines his ability to meet obligations set out in the SAPS act and the PFMA by suggesting disciplinary action can only be taken once the minister has made some kind of decision based on the IGI’s report,” read the judgment.
He said that Sitole, upon being made aware of the misconduct by senior police officials, is not prohibited by anything from taking disciplinary action against them and that this action needed to be taken “swiftly”.
Minnaar also pointed out that the minister’s role does not extend to the day-to-day employment related affairs of the police.
The judgment said the suspensions were clearly an interim measure to provide space for proper investigations.
In his responding affidavit Sitole said the suspensions were necessary to prevent Jacobs and his fellow accused from interfering in the investigations.
“An investigation is required to look at the veracity of the allegations, and it needs to be comprehensive and thorough. The employees are all senior members of the crime intelligence division, their seniority creates a likelihood of interference with the investigation, intimidation of witnesses and tampering with documents,” read Sitole’s affidavit.
“Their mere presence during the investigation could undermine the process and jeopardise the investigation by rendering persons with knowledge necessary for the investigation reluctant to come forward or be forthcoming,” said Sitole.
He said according to regulations the suspensions were with full pay and only temporary pending the outcome of investigations ameliorating any prejudice to the employees.
Minnaar said Sitole was obliged to act against his employees according to the PFMA.
Dintwe told TimesLIVE on Saturday that the judgment was a win-win situation for the inspector-general of intelligence and the police.
“We are basing our arguments on principal. I’ve always said that it’s based on principal. It’s not about who is against whom, so I’m working very well with them, but this time there was a legal principal we were defending,” said Dintwe.
“The legal principal was that the members of crime intelligence, or of the state security agency, or of the defence intelligence are not above members of other agencies or services, they are equal,” he said.
Minnaar set aside Jacobs, Lombard, Walljee, Gopal, Lekalakala, and Matamela’s appeal and also ruled that they should pay their own legal costs. They were represented by the South African Police Union.
Giving his reasons for the cost order Minnaar said the applicants were aware of Dintwe and Sitole’s approach and reasons for instituting disciplinary procedures before they decided to challenge their suspensions.
He said they acted in their own interests to seek and order that they be reinstated.
Attempts made to contact the applicants’ attorney on Saturday were unsuccessful.
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