Does the Constitutional Court have the stomach to take on the president?
That is the stark question raised by the application of sacked intelligence boss Billy Masetlha, who is asking the court to overturn his suspension and dismissal by President Thabo Mbeki.
Masetlha’s lawyers have placed a strong legal noose around the president’s neck, but it remains to be seen if the court will agree to draw it tight.
The case is scheduled for May 10 and will arguably be the most serious test yet of the court’s willingness to question executive decisions at the highest level, and in the sensitive area of intelligence.
Last year Masetlha launched an unsuccessful Pretoria High Court challenge to his October 2005 suspension and the subsequent early termination of his contract in March last year.
Judge Ben du Plessis found that Mbeki had effectively dismissed Masetlha, though he did so by unilaterally bringing forward the expiry date of his contract. Further, Du Plessis ruled that Section 209 of the Constitution, which grants the president the power to appoint the heads of the intelligence services, must be read as implicitly also granting him the right to terminate that appointment.
But Masetlha’s constitutional attack on that judgement is extremely thorough.
Judges who might balk at overturning the president’s decision will be left with very little room to manoeuvre, but for one loophole which is that Masetlha is appealing directly to the Constitutional Court, bypassing the usual route of proceeding first to the Supreme Court of Appeal.
He bases this approach on the fact that the case raises direct questions about the interpretation of the Constitution — and on the fact that, should he proceed via the Appeal Court, it will probably be another year before he gets to the Constitutional Court.
Because his original contract was due to expire at the end of 2007, that delay would render his case moot.
Masetlha was suspended in the wake of the furore over the National Intelligence Agency’s (NIA) botched spying operation — involving businessman Saki Macozoma — and was sacked after the report of the inspector general of intelligence on the hoax email affair, in which Masetlha played a central role.
The president cited the breakdown in trust between the two men as the reason for his action, normally a clinching motivation in terms of labour law governing more conventional employment relationships.
South African courts have generally granted employers a significant prerogative over the employment relationship and, in cases where there is a breakdown in trust, courts would normally not order a reinstatement, even if the dismissal were unfair. They would generally look to other forms of compensation.
But the relationship between the president and the director general of the NIA is not governed by labour law — and Masetlha’s lawyers have cleverly argued that they are not asking for reinstatement, but for the president’s actions to be set aside as illegal.
They claim that, should he still wish to dismiss Masetlha, there are other legal instruments open to the president, such as contract law.
The case is entirely procedural and attacks the legal basis used by Mbeki to justify both the suspension and sacking of Masetlha.
The fact that the case was entirely procedural led the Pretoria High Court to take a robust view of the legal issues. Judge du Plessis said the role of the director general of the NIA was a post with constitutional implications: ‘It would be unrealistic to approach the — issues as if they were matters of private law of contract.â€
Given the crucial nature of the relationship of trust that must exist between the president and his intelligence chiefs, the Constitutional Court is likely to want to agree with Du Plessis.
But Masetlha has tied his attack on the procedures adopted by the president to some potent legal and constitutional principles that the court will be hard-pressed to discount.
Firstly, he argues that the president’s power to appoint should not be interpreted as implying a power to dismiss.
Our courts, he points out, have held that such a ‘reading in†of an implied term in legislation should not occur unless the legislation is unworkable without it.
Masetlha argues this is not the case and that other laws exist that would allow for dismissal. Such an implied term is also impermissibly vague, he argues.
But, more importantly, he argues that the appeal to Section 209 of the Constitution as the source of the president’s power to act was an afterthought.
In his letter dismissing Masetlha, the President referred only to prematurely ending his contract in terms of the Public Service Act. The appeal to Section 209 of the Constitution was invoked only in argument in the high court when it was clear that the Act did not grant the president such power.
Legal principle, Masetlha claims, does not allow the president simply to swap legal horses when one approach falters.
Finally, as an alternative to setting aside his dismissal, Masetlha argues that one of the planks of his challenge in the high court was an allegation that the president acted from improper motive — and that the court erred in not referring this disputed claim for oral evidence, which would entail calling the president to testify.
Should the Constitutional Court accept that claim, the scene would be set for a showdown that would make the 1999 confrontation between then rugby football boss Louis Luyt and former president Nelson Mandela look like a picnic.