Former National Intelligence Agency (NIA) boss Billy Masetlha has proposed to the Constitutional Court that he be reinstated to his position, but under suspension for 15 working days.
During this time, he would expect President Thabo Mbeki to take steps ”to achieve a consensual resolution” of matters pertaining to his dismissal.
Alternatively, Masetlha’s counsel, Neil Tuchten, told the court on Thursday, Mbeki would be required to take steps to ”take a proper decision” on Masetlha.
Should the president do neither, he would be deemed to have returned Masetlha to office in the best interests of the country.
The NIA Director General Mbeki has since appointed to a three-year-term, Manala Manzini, would be considered not to have been lawfully appointed and therefore not to hold the post.
”The Constitution doesn’t contemplate that heads of intelligence should be dismissed for foolish reasons,” Tuchten told the court.
Masetlha was suspended by Intelligence Minister Ronnie Kasrils in October 2005 over hoax emails that made out that senior African National Congress officials were conspiring against its deputy president, Jacob Zuma, and secretary general, Kgalema Motlanthe.
Instead of dismissing him outright, Mbeki then reduced his term of office by nine months, which had the effect of dismissal. Masetlha’s term of office was to have ended on December 31 this year. He was offered full pay, with pensionable benefits until that date, but not the official house he occupied.
Challenge
Masetlha is challenging both the suspension and dismissal. He contends that Kasrils did not have the legal capacity to suspend him.
He also holds that he did not accept Mbeki’s attempt to repudiate the contract, that Mbeki did not give him a hearing, and that the president did not have the statutory power to amend his contract without his consent. He further contends that Mbeki’s decision amounted to an administrative action under the Promotion of Administrative Justice Act under which it fell to be reviewed and set aside.
”What he wants is for the law to apply and not for special circumstances,” Tuchten told the court. ”It would be a bad thing if this court were to make an order because of one of the personalities involved. There shouldn’t be one law for the president and another for everybody else.”
If it was determined that his conduct was inconsistent with the Constitution, it had to be declared invalid. ”We say it would not be just and equitable to go any further than to offer the president space to correct the situation that has arisen.”
One of Masetlha’s motives in bringing his litigation was that he not be treated like this — ”accused of terrible things” in a process that excluded him from answering the charges against him.
Relationship ‘broken down’
In the letter amending Masetlha’s term, Mbeki wrote that he was doing so because their relationship had broken down irreparably. The Pretoria High Court later held that this was a rational basis for dismissal.
Mbeki’s counsel, Ishmael Semenya, argued that Mbeki’s powers were vested in the Constitution, which gave him the right to appoint the head of the NIA. In doing so it implied that Mbeki also had the right to dismiss the NIA head, he contended.
As such, the decision was an executive and not an administrative action and did not require that a hearing be held.
Masetlha was, nonetheless, invited to present his side of the matter in the order suspending him. He had not done so, nor had he explained his position to the inspector general of intelligence, who found he had misled the minister and suggested disciplinary action against him as a result.
”To this date there is no answer,” Semenya told the court.
Semenya conceded that executive actions were not exempt from review, but contended that the test for the constitutionality did not include fairness. All that had to be proved was a rational connection between the decision and the purpose for which it was made.
He submitted that Mbeki had been in no doubt that he was empowered to dismiss Masetlha when he approached Minister of Public Service and Administration Geraldine Fraser-Moleketi about the matter.
Mbeki had consulted her not about the dismissal itself, but out of concern that it be effected humanely with respect to service benefits considering Masetlha’s long service.
It was as a result of these talks that Mbeki determined the best deal for Masetlha would be obtained by amending his term of office to expire, not terminate.
The Constitutional Court reserved judgement in the matter. — Sapa