The State Security Agency (SSA) has slammed former Inspector-General of Intelligence (IGI) Dr Setlhomamaru Dintwe's demand for a R6.1-million payout as built on misrepresentation - and has gone to court to block it.

Dintwe - whose security clearance was pulled by then-spy boss Arthur Fraser when the intelligence watchdog chief started investigating him for alleged abuses in 2018 - is suing President Cyril Ramaphosa, the minister in the presidency and the SSA for more than R6.1 million he claims is still due to him.

In papers filed at the Johannesburg Labour Court, Dintwe's lawyers accuse the minister in the presidency and the SSA of ignoring his demands that he be paid the full gratuity he was owed once his service ended (which he says the SSA miscalculated), outstanding salary amounts and nearly half a million rand for the 124 days of leave he says he never took.

The SSA and minister in the presidency are, however, adamant the contract erratum Dintwe is relying on to make his demands is constitutionally invalid and not enforceable because it was based on misrepresentation by the former IGI - and have now launched their own Labour Court litigation to obtain a ruling that sets it aside.

Recently resigned SSA Director-General Thembisile Majola told the Labour Court this erratum - which was signed by then-minister in the presidency Mondli Gungubele and the chairperson of Parliament's Standing Committee on Intelligence Jerome Maake two days after Dintwe's term ended - had inflated the IGI's remuneration by 52% or R1.9-million.

She said in an affidavit filed two weeks before she left office:

At no stage were the [SSA] and the [SSA Director-General] consulted in relation to the amendment of the employment conditions in relation to the remuneration and gratification of the [IGI] prior to the signing of the erratum.

Majola further accuses Dintwe of knowing he was acting against the prescripts of the Constitution and the law when he sought the change in his contract and made the misrepresentation to Gungubele and Maake she said he used to justify it.

The former IGI "cannot claim to be an innocent part of the conclusion of the erratum," she added.

Dintwe was appointed by President Ramaphosa and was tasked with investigating alleged wrongdoing by state intelligence.

He began his five-year term as the IGI on 15 March 2017 and ended it on 15 March 2022.

Under the conditions of his employment, Dintwe was supposed to receive a salary package that is equivalent to that of the Public Protector (who receives the same salary as a Supreme Court of Appeal judge).

The IGI's benefits include a "non-taxable service allowance of R73 435" a year, a "non-taxable entertainment allowance of R45 000" a year, use of a state vehicle for private use (up to 75 000km), paid travel and accommodation for his spouse, "unlimited hotel accommodation similar to that of a deputy minister" and an "operational catering allowance".

Dintwe's contract also reveals, in addition to unlimited business class local and international flights, he was given 24 business class tickets for domestic travel every year, which he was able to give to whomever he chose.

This benefit is not given to the Public Protector, and the SSA and IGI has refused to comment on its purpose, on the basis the dispute over Dintwe's remuneration is sub judice.

Dintwe's entitlement to these airline tickets is not disputed in this litigation, however.

Like the Public Protector, the IGI is entitled to receive a gratuity at the end of the term.

That gratuity is calculated according to a specific formula and – as in the case of the Public Protector - typically runs into several million rand.

According to Dintwe, the terms according to which his gratuity was calculated incorrectly recorded his five-year term of office as being seven years, the same as the Public Protector.

As a result, he said, Gungubele and Maake signed an erratum (effectively an addendum to his employment contract) on 17 March 2022, two days after his term ended.

He said this erratum corrected the incorrect gratuity formula.

This correction has resulted in Dintwe's IGI gratuity now totalling more than R7.4 million, his lawyers contend.

This was substantially more than the R2.1-million gratuity the former IGI alleges was incorrectly calculated by the SSA.

He now wants the Labour Court to order that he be paid the R5.3-million gratuity he says is still owed to him.

According to Majola, however, Dintwe made a misrepresentation to Gungubele and Maake "claiming that the formula for calculating his remuneration was incorrect and that in fact … he is entitled to remuneration on a higher scale".

"[Dintwe] through his misrepresentation unlawfully convinced the minister … and the chairperson of the Joint Standing Committee on Intelligence … to sign an amendment in the form of an erratum thereby changing the conditions of employment and in fact providing for a higher remuneration scale to be paid to him, which remuneration was not budgeted for," she stated.

Majola has also pointed out the disputed erratum - which the SSA was never consulted about and did not agree to - was signed after Dintwe's appointment as IGI was terminated.

She contended, should this amendment stand, Dintwe would no longer be on the same pay scale as the Public Protector or an SCA judge.

Further, she stated, Gungubele and Maake failed to apply their minds to the revised employment conditions created by the erratum "and signed the agreement without ensuring that it was in accordance with the applicable legal framework and principles and that it was in the circumstances fair, equitable and cost effective".

"There was simply no rationale or reasonable grounds for the amendment of [Dintwe's] employment agreement, or the increase of his remuneration package as provided for in the erratum," she stated.

Dintwe also claimed SSA officials admitted to him his salary as IGI had been "underpaid" by over R399 000.

He said he was shown proof of payment in relation to this money, notwithstanding that, according to him, he had not received that money.

"Despite demand, [the SSA] has to date refused or neglected or failed to correct or pay the said amount [which represents a shortfall in [Dintwe's paid remuneration]," his lawyers said.

Majola added the SSA officials in question had no authority "to change the conditions of employment retrospectively in relation to [Dintwe]" and this was made clear during discussions with them.

According to Dintwe, he also accumulated 124 leave days during his time in office and denied SSA assertions he had forfeited 59 of these leave days during his past four years of service.

His lawyers argued his IGI contract "effectively provides that [Dintwe's] accumulated leave shall be paid out at the termination of service as long as they do not exceed 125 days".

"Accordingly, [Dintwe] has not forfeited any day when his contract came to an end in March 2022 as he had not exceeded 125 days," they stated.

As a result, they said, Dintwe was owed more than R454 700 for the leave he never took.

Majola does not address this leave claim in her application.

Instead, she focuses on persuading the Labour Court to set aside the erratum Dintwe argued entitles him to most of his desired R6.1-million payout.

The erratum, she said, "will place significant and undue financial hardship on the public expenditure under the control of the [SSA and minister in the presidency] and will create a precedent for current and future appointments of the Inspectors-General".