Ndlozi’s ‘abuse of power’ complaint against Cele closed by acting public protector

Acting public protector Kholeka Gcaleka has closed an investigation into police minister Bheki Cele’s alleged abuse of power. The probe was launched after a complaint was lodged by Mbuyiseni Ndlozi. 

The EFF MP complained Cele violated the executive ethics code by instructing former police commissioner Gen Khehla Sitole to append an investigation and suspension of crime intelligence members fingered in a report alleging irregular awarding of personal protection equipment (PPE) tenders.

In his January 13 2021 complaint, Ndlozi asked the public protector whether Cele did not “abuse his power or [was] guilty of political interference” when he instructed Sitole “to halt the suspension of Lt-Gen Peter Jacobs of the SAPS-CI following allegations of irregular awarding of personal protective equipment (PPE) contracts”.

He also asked the public protector to determine whether Cele’s conduct did not amount to defeating the ends of justice and whether the minister was linked to the company under investigation. 

The public protector relied on documents from Ndlozi, Cele, Sitole and the office of the intelligence inspector-general.

According to Gcaleka's report, released on Friday, Cele, on December 1 2020, “issued a directive to Gen Sitole advising him to put in abeyance all investigations and suspension of certain members of the South African Police Service Crime Intelligence (SAPS-CI). These were Lt-Gen Jacobs, Brig LA Lombard, Col I Walljee, Maj-Gen MJ Lekalakala and Col BW Matamela who were implicated in an inspector-general of intelligence (IGI) report”. Notwithstanding Cele’s directive, Sitole suspended the implicated officials between December 8 and 10 2020. 

“The issue for determination is whether the minister breached the executive ethics code when he instructed Gen Sitole to suspend the investigation and intended suspension of the implicated officials until he had received the IGI report,” the report reads. 

In his response to the public protector, Cele argued that according to the law, the IGI report should have been submitted to him first as the police minister.

“According to the minister, his understanding was that all the previous reports and annual certificates issued by the IGI were communicated directly to the minister of police and not to the national commissioner. Therefore, it was unheard of at the time for the IGI to send a report directly to the national commissioner,” the report reads. 

“The minister indicated that ‘in terms of the act I have a responsibility towards parliament. The intention was, therefore, not to interfere with the duties of the national commissioner, but merely an effort to give effect to the provisions of the act, as interpreted by me at the time.’”

Cele told Gcaleka the IGI only issued the final report on April 30 2021, five months after the suspension of the SAPS officials and the release of the PPE preliminary report. 

“This potentially meant that not all affected or implicated persons were treated with the same intensity, attention and/or fairness,” Cele said. 

“The minister further submitted that, at the time, he was also aware that Lt-Gen Jacobs had made various protected disclosures involving Gen Sitole, among others. In this regard, Lt-Gen Jacobs raised his reservation about the impartiality of Gen Sitole in his representation against his precautionary suspension, due to the fact that he was involved in the investigation against senior staff members of the SAPS, including the national commissioner.”

The PPE preliminary report recommended Sitole initiate a probe and implement appropriate action for any “possible fraudulent activity”. It also highlighted a need “for in-depth investigation of the procurement in question”, among other things. 

“It is thus recommended that the national commissioner should consider suspension of persons involved in these transactions in terms of the South African Police Service Discipline Regulations, 2016. This will allow unhindered in-depth criminal and disciplinary investigation including the access of information by the OIGI,” the preliminary report reads. 

According to the public protector’s report, Cele told the former inspector-general of intelligence, in December 2020, he had advised Sitole not to consider the PPE preliminary report until he [Cele] had been furnished with it.

“Despite my letter sent to the inspector–general of intelligence on December 1 2020, to date the inspector-general has not responded to me. Instead, the inspector-general has given a report to the national commissioner of the South African Police Service, Gen KJ Sitole,” Cele wrote to the former inspector-general of intelligence. 

“Gen Sitole has confirmed in writing, in a letter dated December 4 2020, that he received a report from the inspector-general. Subsequently, employees have been suspended. I still hold a strong view that ... the report should be given to the minister of police, as the law provides. Any other person in possession of the report might therefore be in contravention of the act, including the inspector-general by furnishing the report to the national commissioner.

“I still direct that the report be provided to me, the minister of the police, in this regard. I am still getting counsel on how to process the contravention of the Intelligence Oversight Act.” 

The IGI maintained Cele’s instruction to Sitole lacked legal basis.

Gcaleka concluded there was no proof Cele was dishonest. 

“Considering the composite information ... there is no evidence that the minister was dishonest or acted in bad faith when he issued the impugned directive. The available evidence supports the contention that the impugned directive was based on the minister’s bona fide, but mistaken interpretation of section 7(7) of the Oversight Act and consideration of the protected disclosures,” the public protector’s report reads. 

She conducted an investigation to establish if there were any links between the three companies that were awarded the PPE contracts by the SAPS-CI and Cele, as well as a “financial investigation”.  

“The investigation conducted by the public protector also did not establish any connection between the minister and his family with the three companies that benefited from the awarding of the PPE contracts by the SAPS-CI,” Gcaleka said. 

“In view of the foregoing, there was no evidence indicating that the minister exposed himself to a situation involving the risk of a conflict between his official responsibilities and his private interests.”

The report adds: “The allegations that the minister violated the Executive Ethics Code when he instructed Gen Sitole to suspend the investigation and intended suspensions of implicated officials until he had received a report from the IGI is unsubstantiated.”

Gcaleka said Ndlozi was given an opportunity in May to respond, but failed to do so and she “closed the matter”. 

“The public protector considers this matter finalised and cannot take it further. Should any party wish to challenge this decision, they are at liberty to explore legal remedies at their disposal,” the report reads. 

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