The president must explain which laws he relied on to remove Billy Masetlha from the position of director general of the National Intelligence Agency (NIA), the Constitutional Court heard on Thursday.
Masetlha’s counsel, Neil Tuchten, SC, told the court: ”Our claim is: ‘I am director of the NIA; you have to justify any claim to terminate employment before the due date and it is up to you to say how you did it.”’
His term could not be ended under the law of contract, because he did not have a contract — all Masetlha had was a letter of appointment, Tuchten submitted.
Should it be claimed that the action was one governed by statute, the contention would be: ”We don’t know where you get the power from.”
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 that said that senior African National Congress members were conspiring against its deputy president, Jacob Zuma, and secretary general, Kgalema Motlanthe.
”It is self-evident that mutual trust must exist between the president and the heads of intelligence services. The breakdown constitutes a lawful basis for the president to have dismissed [Masetlha],” Pretoria High Court Justice Ben du Plessis found in December last year in turning down an application for Masetlha’s reinstatement.
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 do so. Alternatively, he argues that the decision breached his right to procedural fairness under the Promotion of Administrative Justice Act as, among other things, he was not given a hearing.
Constitutional Court Justice Kate O’Regan pointed out to the court that a difficulty might arise with regard to remedy should it be found there had been a breach by the president. While this would normally be based on consequential loss, in this case Masetlha was receiving a full salary including pensionable benefits until his original termination date.
Tuchten agreed that all that was excluded from compensation was the official house Masetlha occupied.
O’Regan told the court the only other remedy was reinstatement. It would be hard to make a case for the reinstatement to be someone the president no longer accepted, when it was left to his discretion to appoint someone he did accept.
She submitted that apart from determining constitutional validity, the Constitutional Court was charged with ensuring its decisions constituted just and equitable relief.
O’Regan told Tuchten he would have to convince the court why it was just an equitable to put back into position as head of the NIA — a person empowered to do all sorts of secret things — a person in whom the president had lost confidence. — Sapa