Jacobs vs Sitole: High Court rules Sitole suspension of Jacobs and five others lawful

Acting Judge Jacques Minnaar found on 8 January 2021 that National Police Commissioner Khehla Sitole was not only entitled to act against Jacobs and his fellow officers, he “is obliged to do so by law”.

Jacobs, as well as other top CI officials, Brigadier Albo Lombard, section head: intelligence planning and monitoring; Colonel Isaac Walljee, acting section head: supply chain management; Colonel Manogaran Gopal, section commander: vehicle fleet management and asset management secret services account: supply chain management; Major General Maperemisa Lekalakala, acting component head and CFO secret services account; Colonel Bale Matamela, section commander: procurement secret services account were all suspended by Sitole between 30 November and early December 2020.

Jacobs argued Sitole had breached the Intelligence Oversight Act when he relied on a preliminary report by  the Inspector-General of Intelligence, Setlhomamaru Dintwe, into alleged PPE procurement irregularities from the crime intelligence secret services account to effect the suspensions.

The court had to determine whether the act prevented the National Commissioner, as the employer, from suspending SAPS employees until the inspector-general submitted a report to Police Minister Bheki Cele, who must recommend the suspensions. 

Sitole had argued that the disciplinary process was a separate and independent one from the inspector-general’s duty to submit a report to Cele.

On 1 December 2020 Cele wrote to Sitole requesting him to put the suspensions of Jacobs and fellow officers “in abeyance”.

Both Sitole and Dintwe argued that “there is nothing precluding interactions between the (inspector-general) and the national commissioner” and that cooperation between their offices “is required”.

According to the act, the national commissioner was one of the “Heads of Service” as defined in the legislation.

Acting judge Minnaar said provisions in the act existed as a “collaborative whole creating obligations for the minister, the national commissioner, the (inspector-general) and Parliament with the overall aim of giving effect to the national strategic intelligence agenda”.

“It is a statutory covenant that binds them to a single, harmonious intelligence agenda within the sphere of their allocated powers,” he said.

Jacobs and his fellow applicants’ reliance on section 7 (7) of the act was “misconstrued” said the judge and that section 7 (11) made provision for reports to be submitted by the national commissioner to both the minister and the inspector-general.

Until such time as an investigation by Lieutenant General Francinah Vuma and the inspector-general was concluded it would be “premature”, the judge added, to decide whether the alleged misconduct or violations related to intelligence and counterintelligence or whether they constituted “maladministration”.

Sitole, he found, was the person “tasked with exercising control over and managing SAPS” and he was thus authorised to institute disciplinary proceedings.

“It is the national commissioner’s prerogative as the employer to initiate investigations and disciplinary action” ruled the acting judge and the SAPS Act read with SAPS Regulations and the Public Finance Management Act obliged the national commissioner to “take appropriate action in cases of procurement irregularities and flouting of Treasury regulations”.

The suspensions, he added, were clearly “an interim measure to provide space for a proper investigation”. DM