The heads of argument and record of proceedings in the Constitutional Court’s deliberations on the dismissal of former National Intelligence Agency director general Billy Masetlha will be open to the public.
In an interim ruling, Chief Justice Pius Langa said heads of arguments filed by council for the Presidency and that for Masetlha will be available to the public at the office of the registrar from noon on May 14.
”Any party who wishes to object to the disclosure of any documents in the record must, in a notice filed no later than noon on May 11, identify the documents to which the objection related and the grounds for the objection,” Langa ordered.
The Independent Group brought an application for access after the heads of argument were removed from public domain because certain documents were marked top secret.
The court heard that neither counsel for the president, Ishmael Semenya, SC, nor that for Masetlha, Neil Tuchten, SC, objected to this as all the information had already been in the public domain. The entire record of proceedings in the high court had been available to the public.
Although all parties agreed, Gilbert Marcus, counsel for the Independent Group, asked that the court make a finding. He argued that a mere agreement between parties could subvert the interests of justice.
Dismissal
Masetlha is asking the Constitutional Court to overturn a Pretoria High Court ruling upholding his dismissal.
He was suspended in October 2005 and dismissed in March last year over hoax emails purporting to show that senior African National Congress (ANC) members were conspiring against its deputy president, Jacob Zuma, and secretary general, Kgalema Motlanthe.
Pretoria High Court Judge Ben du Plessis ruled in December 2006 that a breakdown of trust was a lawful reason for Masetlha’s suspension and sacking by President Thabo Mbeki.
However, Masetlha contends that the decision to suspend him was not made by the president, but by Intelligence Minister Ronnie Kasrils, who did not have the legal capacity to so. Alternatively, he argues that the decision breached his right to procedural fairness under the Promotion of Administrative Justice Act as he was not given a hearing.
The president contends that the decision was lawful.
Masetlha has, meanwhile, been charged — along with software salesperson Muziwendoda Kunene and National Intelligence Agency (NIA) electronic surveillance manager Funowakhe Madlala — with fraud involving R152 000 relating to the hoax emails.
The charge sheet alleges that they pretended to Mbeki, Kasrils and the NIA that several ”controversial and damaging” documents were genuine, when they were actually fabrications.
In February, the Hatfield Magistrate’s Court in Pretoria was told by NIA Inspector General Zolile Ngcakani that there had been no political conspiracy to oust Masetlha.
In April, Masetlha subpoenaed Motlanthe to hand over an ANC report into the hoax emails for use in the fraud trial in July.
That document was reportedly sealed and classified as confidential after it was rejected by the ANC national executive committee in March. — Sapa