Magosi defends P7.4m pay out, denies contempt
Mpho Mokwape | Monday September 22, 2025 10:34
Magosi said the agency did not act in contempt of court after failing to pay the former employees as ordered by a Tribunal on Intelligence and Security, and the delay was caused by internal miscommunication and budget constraints, not a refusal to comply.
The matter, brought by Lucky Kgabeng and 105 others, stems from a February 2022 Tribunal order that directed the DIS to compensate the officers for various outstanding employment-related benefits.
The payments included overtime, salary adjustments, and housing allowances accumulated over several years.
The applicants have since approached the Tribunal again, alleging contempt of court, and they argue that the DIS failed to follow the Tribunal’s instructions, including the requirement that payments be made through their lawyers, Ngakaagae & Co., and that the amounts paid fell short of what was ordered.
In response, Magosi has acknowledged that while there was a technical non-compliance with the order, this was not deliberate or in bad faith, and that the payments were made directly into the officers' bank accounts instead of through their attorneys as specified.
“The mistake is highly regretted, and I blame internal miscommunication for the mistake. The payments were made months later than expected due to funding delays,” he said.
According to the answering affidavit that he deposed, Magosi explained that the DIS had made it clear to the applicants’ former attorneys as early as January 2022 that the organisation did not have enough funds in its allocated budget to make the payments.
A letter dated January 28, 2022, which was submitted as part of the official record, shows that the DIS had requested a supplementary budget and indicated that payments would only be possible between May and September 2023.
Magosi said the funds were only made available around September 2023, after which payments were processed.
He explained that the organisation followed through on its word and had no intention of defying the Tribunal’s ruling.
On the issue of reduced amounts, Magosi stated that the original calculations were flawed due to a number of administrative errors. He explained that initial figures were inflated because they were based on incorrect assumptions and misapplied government directives.
In relation to overtime, Magosi explained that DIS used to pay overtime at a rate of 15% until April 1, 2014, when Circular Savingram No. 11 of 2014 increased the rate to 20%.
However, the initial calculations had mistakenly applied the 20% rate across all periods, including those prior to April 2014. When this was corrected, the total owed to officers was adjusted downward.
“Salary adjustments were also miscalculated. The original white paper used to calculate back pay incorrectly assumed that all salary directives came into effect on April 1 each year. In fact, each directive had its own effective date,” Magosi stated.
Magosi further explained that because of the incorrect application of the dates, the early calculations overstated what officers were owed, emphasising that once proper calculations were made using the correct directives and timelines, the final amount owed to all 106 officers was adjusted to P7, 449,517.48.
He also addressed issues around housing allowances, pointing out that some officers had been housed in government pool houses and were paying subsidised rents.
“In such cases, it would not have been proper to grant full housing allowances. Instead, affected officers were reimbursed for rent paid. Housing allowances are calculated as 15% of the officer’s basic salary, so any correction to basic salary also impacted housing payments,” he said.
According to him, a detailed breakdown of the new figures, alongside the original calculations, has been submitted to the Tribunal, and these include compendiums which cover each officer’s individual payout history and adjustments.
However, Magosi denied that the organisation was in contempt of the Tribunal, saying that the DIS had complied with the essence of the ruling by paying the officers, even though the manner and timing of payment fell short of the precise instructions.
He stressed that this was not a deliberate move to undermine the Tribunal, but an operational error that occurred under pressure.
“The fact that there were payments demonstrated the utmost reverence that, on behalf of the respondent, they have for this Tribunal and its orders. I believe that I have dispelled any shadow of appearance of bad faith. I sincerely request this Tribunal to refuse the reliefs sought,” he begged.
He also added that court orders involving payments of money cannot typically be enforced through contempt proceedings, arguing that such matters are supposed to be enforced through the State Proceedings (Civil Actions By or Against Government or Public Officers) Act, particularly Section 7.
According to him, contempt requires wilful, bad faith and disobedience of a court order, and he insisted this was not the case.
The DIS legal team has filed a formal objection on this basis, arguing that the contempt application is procedurally flawed.
Despite acknowledging that certain aspects of the Tribunal’s order were not fully followed, Magosi maintained that the DIS acted in good faith.
“Errors in calculation stemmed from attempts to prepare for a court appearance on short notice, leading to haste and oversight. As Director General, I am responsible for ensuring the proper use of public funds and have a statutory duty to account for how resources are managed. Any delays or mistakes were made in the course of fulfilling this responsibility,” he said.
Meanwhile, the Tribunal is to determine whether the DIS’s actions constitute contempt, or whether the explanations provided are sufficient to excuse the agency’s partial non-compliance.
The applicants, on the other hand, are continuing to seek enforcement of what they believe to be the correct payment amounts and proper legal procedure, and no date has yet been set for the final ruling.