…says 77 agents “automatically dismissed” again
Moorosi Tsiane
THE long-running legal battle between the National Security Service (NSS) and 77 dismissed intelligence agents has taken a dramatic new twist after Director General, Itumeleng Letsepe, refused to reinstate them, despite a 7 November 2025 judgment of the Court of Appeal setting aside their 2017 dismissal.
Instead, Mr Letsepe maintains that the agents were automatically discharged for failing to report for duty after the appellate court ruled in their favour.
In a strongly worded letter dated 25 February 2026 to their lawyer, Advocate Motiea Teele KC, the NSS boss made it clear that the agents should neither expect reinstatement nor any back pay, effectively setting the stage for yet another legal showdown.
Adv Teele had written to Mr Letsepe on 13 February 2026, allegedly seeking the reinstatement of his clients.
Background
The 77 members of the NSS were dismissed in 2017 by then Director General Pheelo Ralenkoane, who argued that their recruitment by his predecessor, Colonel Tumo Lekhooa, had been irregular and unlawful.
However, Mr Ralenkoane did not seek a court order to review and set aside their appointments. Instead, he unilaterally terminated their contracts, prompting the agents to challenge the decision before the High Court.
Their application was dismissed by retired High Court judge Keketso Moahloli, who ruled that the discharges were effected in compliance with the National Security Service Act 11 of 1998 and characterised the matter as a “quintessential labour dispute”.
Unhappy with that finding, the agents escalated the matter to the Court of Appeal.
Before the appellate court, Adv Teele argued that Mr Ralenkoane had acted unlawfully by resorting to self-help instead of applying to court to review and set aside the appointments.
“In public law, neither a public official nor an administrative body may unilaterally nullify acts of its predecessor, even if considered irregular, without recourse to judicial review,” Adv Teele submitted.
He further contended that the discharge of his clients was procedurally defective, as no inquiry was conducted in accordance with section 11(3) of the Act and Regulations 34 and 35 of Legal Notice 4 of 2000.
Adv Teele also argued that the Minister and the Prime Minister had no lawful role in the discharge process under section 11 of the Act, which vests that power in the Director General and provides for an appeal to the Minister. Their involvement, he said, violated statutory provisions and constitutional principles of legality and separation of powers.
The matter was heard by a panel comprising Court of Appeal President Justice Kananelo Mosito and acting judges, Justices Petrus Damaseb and Johann van der Westhuizen.
In a unanimous decision, the three judges upheld the appeal with costs.
Justice Westhuizen, with the concurrence of the other two judges, ruled that if the appointments were indeed irregular, the Director General ought to have approached a court to review and set them aside.
“This was not done,” the court held.
The judges were particularly critical of the respondents’ shift to what they termed a “collateral challenge”, dismissing it in vivid language.
“By conceding that the discharge of the appellants had been procedurally incorrect and changing course to the collateral challenge, the respondents’ counsel put all his proverbial eggs into one basket. The basket fell to the ground. The eggs broke. The collateral challenge must fail,” ruled Judge van der Westhuizen.
The appellate court was equally scathing about the High Court’s reasoning, finding that it had mischaracterised the dispute as a labour matter and over-emphasised security considerations at the expense of the rule of law.
“The appeal must succeed. Costs must follow the result, in this Court as well as the High Court,” the judgment ruled, setting aside the High Court order and replacing it with one upholding the agents’ application with costs.
Despite the emphatic appellate ruling, Mr Letsepe appears unmoved.
In his letter to Adv Teele, he stated that reinstatement would not be possible, even if the Court of Appeal had specifically ordered it, because the positions in question have since been filled.
“Kindly take notice that we dispute the veracity of the demands contained therein. Reinstatement, even if the court of appeal had specifically ordered it, would not be possible at this time given the fact that these positions have since been filled,” Mr Letsepe wrote.
On the issue of salaries, Mr Letsepe argued that the agents were not entitled to payment because they had not rendered any services.
“Your clients are therefore not entitled to any salary as that would be tantamount to admitting that they have all along been performing services as employees,” he stated.
Alternatively, he invoked section 12(1) of the National Security Service Act, arguing that even if reinstatement were to be considered, the agents had failed to report for duty within 14 days of judgment and were therefore deemed to have been discharged.
“According to Section 12(1) of the National Security Service Act No. 11 of 1998, A member or ancillary staff who absents himself from official duties without the permission of the Director General or a valid excuse for more than fourteen days shall be deemed to have been discharged and dismissed from the service with effect from the date immediately following his last day at work,” Mr Letsepe wrote.
Adv Teele could not be reached for comment to speak on his clients’ next course of action.
