Labour court ruling throws light on internal battles in police crime intelligence unit

The labour court last week halted an attempt by the South African Police Service (SAPS)  management to subject Major General Feroz Khan, its head of security and counter-intelligence, to an expeditious disciplinary process which could have led to his summary dismissal.

Khan went to court in early November to stop Crime Intelligence Division head Lieutenant General Dumisani Khumalo and national police commissioner General Fannie Masemola from proceeding with the hearing. 

He claimed in court papers that he was being “persecuted for doing my job” and that a matter in which he was a “competent witness” was being used to try to end his career — and his investigations against top members of the SAPS.

The court hearing has thrown open a window on the infighting within crime intelligence — and fresh allegations that its operatives and other ranking members of the police force are deeply involved in organised crime.

Parliament’s police portfolio committee on Monday called on management to stop their “destructive behaviour” with regard to the Khan matter and other incidents involving crime intelligence, which it described as the “Achilles heel” of the SAPS in the fight against crime.

Khan faces departmental charges of defeating the ends of justice and bringing the SAPS into disrepute over his role in a R300 million drug bust near OR Tambo International Airport in 2021, over which three police officials were originally charged.

The case against the three was withdrawn, but Khan and other SAPS members, who had arrived on the scene after being alerted of a potential stand-off between members of various police units, were then charged with defeating the ends of justice.

The director of public prosecutions declined to prosecute Khan and his colleagues, saying that the matter was “a trifling internal dispute between different law enforcement units, which warrants mediation and not prosecution”.

However, an investigation by the Independent Police Investigative Directorate (Ipid) went ahead, leading to departmental charges being brought against Khan, but none of the other officers charged with him, in October. Khan was served notice of an expeditious hearing during the course of the month.

He approached the court asking that it interdict the regulation 9 process from going ahead, supplementing his call for intervention to request that the SAPS institute any process through regulations 8 and 11 instead.

Last week, acting judge Lindiwe Vukewa ordered that the regulation 9 process, in which Khan would not be allowed to present evidence or cross-examine witnesses, be abandoned and that SAPS management follow procedures in terms of regulations 8 and 11 instead.

In both of these regulations any action against Khan will take place in terms of normal disciplinary processes in which there is a right to representation, to bring witnesses and evidence and a right to cross-examine those by SAPS management.

In his affidavit, Khan said the expeditious process had been brought as “a stratagem to dismiss me and force me out of the SAPS without due process or a fair hearing”.

The cocaine bust, in which he was a “competent witness” had been “dug up” after a three-year delay and used in an attempt to force an expeditious process “within the course of a week”. 

Khan said he had spent hours with the Johannesburg director of public prosecutions to have the drugs case reinstated, which “remains a possibility”, and that he believed that this was one of the reasons he was being targeted.

He was conducting “sensitive investigations” into “acts of criminality, abuse of secret service funds and nepotism” against Khumalo and said he had made several protected disclosures about this to his superiors.

“If the SAPS truly and honestly wishes to pursue the allegation against me, there is no reason why it cannot do so though a normal disciplinary hearing in terms of regulation eight,” Khan said.

He said that there had been no action taken against the other four officers who were charged with him and that Khumalo “has dug up the incident from over three years ago to secure my dismissal from the service”.

“It has become clear to me in the execution of my duties that I have made myself a target by those whose malfeasance stand to be exposed by my investigation and who now want to subvert the disciplinary regulations of SAPS by reviving a three-year-old investigation, in which I am actually a competent witness, and want to use that same investigation to haul me before an expeditious hearing,” Khan said.

The investigations he was conducting “will be quashed once I am dismissed and the culprits will get away with their unlawful conduct, for which they would otherwise be prosecuted criminally”.

“I am being persecuted for doing my job.”

Khan said it was possible that the drugs “were being moved to be sold or to aid or abet a large drug operation” and that the expeditious process was “retaliation for scuppering the untoward and unlawful motives of the police and their accomplices”.

In his affidavit, Khumalo denied Khan’s allegations and said that the regulation 11 process was fair, having been agreed to by the Police and Prisons Civil Rights Union, to which Khan belonged.

Khumalo said the charges which Khan faced “warrant the institution of the expeditious procedure as provided for in regulation 9”.

“The seriousness of the misconduct as levelled against the applicant with reference to the prescripts of the regulations demands an expeditious disciplinary process.”

He said that Ipid had recommended the regulation 9 process and the fact that the incident had taken place three years ago was “neither here nor there”.

Khumalo also denied that Khan “is being victimised by the respondents due to his

alleged investigations that he was allegedly conducting”, saying he had “no idea” what they were.

He said Khan had not made any protected disclosures before being served notice of the disciplinary hearing and had not followed any of the SAPS whistleblowing policies.

“I have no idea what investigations the applicant is referring to. I also deny that I had ever asked him to stop with investigations,” Khumalo said.

Any instruction to stop an investigation “ought to have been written down in the respective dockets” and he challenged Khan to produce them.

Khumalo said that it was “not a foregone conclusion” that Khan would be dismissed through the expeditious disciplinary process which would provide him with an opportunity to prove his innocence.

Acting judge Vukewa found that there was no reason for the SAPS not to follow regulation 8 or regulation 11, particularly due to the circumstances of the matter and the claims of malfeasance by senior officials.

Vukewa also found a regulation 9 hearing would not allow Khan redress at a later point.

“Although I am disinclined to agree with the applicant that he will be dismissed if a regulation 9 disciplinary hearing proceeds, I agree with him that he will not obtain substantial redress at a hearing in due course,” she said in her judgment.

It was clear that SAPS management was “hellbent on finalising the disciplinary hearing”.

“The manner in which the incident occurred, the possible involvement of high-ranking SAPS members in the commission of a crime, the transportation and possible smuggling of drugs by these high-ranking police officials and possibility of police movement in a syndicate operation involving the transport of drugs” all meant that the matter had to be properly ventilated, the acting judge said.

Vukewa said none of the parties would suffer prejudice if regulations 8 or 11 were followed and that this would also prevent a situation where “the referee also becomes the player”.

“The issues seem very fragile and peculiar to be dealt with in the form of a meeting where no leading of evidence is allowed and where no cross-examination of witnesses takes place,” she said.

On Monday, parliament’s police portfolio committee called on police management to “desist from self-destructive behaviour” that could derail the “laudable progress” achieved in reforming the SAPS and “turning it into a potent tool to fight crime”.

Committee chairperson Ian Cameron said that while there had been “commendable progress” in the past five months, the “continued challenges” facing crime intelligence “have the potential to derail the positive efforts to reform the SAPS”.

Crime intelligence was an “Achilles heel” for the SAPS and “the urgency to resolve its challenges cannot be overemphasised”, he said.

Cameron said there was a “resistance to reform” in crime intelligence.

“The ultimate test will be how the SAPS management responds to areas of concern to ensure a safe and secure country. If they can overcome these self-destructive actions, the SAPS could be on a route to the necessary recovery needed to combat crime,” he said.

SAPS spokesperson Colonel Athlenda Mathe did not respond to a query from Mail & Guardian.