/ 3 October 2007

Mbeki was entitled to sack Masetlha

The Constitutional Court ruled on Wednesday that President Thabo Mbeki did have the power to sack former National Intelligence Agency (NIA) director general Billy Masetlha.

The president had the power to terminate his employment under section 209(2) of the Constitution, read with section 3 of the Intelligence Services Act, because there had been an irretrievable breakdown of trust.

The Constitution and the Act gave Mbeki the power to appoint the heads of security agencies, but they did not cover powers to dismiss the person, the judgement read.

When Masetlha was appointed director general of the NIA on December 14 2004 through a presidential appointment for three years, he was given a letter of appointment.

He was not given a contract setting out terms, and the Labour Relations and Basic Conditions of Employment Acts also excluded members of the agency from the scope of their application.

A complex judgement found that without the competency to dismiss, the president would not be able to remove the head of the agency without his consent before the end of his term of office, whatever the circumstances might be.

This would lead to an ”absurdity” and undermine the ”constitutional pursuit” of the security of the country and its people.

In 2005, businessman Saki Macozoma complained to the NIA and Intelligence Minister Ronnie Kasrils that he was under surveillance and Kasrils asked Masetlha to account formally on the operation.

Masetlha said it had been done without his authorisation and in error, which he attributed to deputy director general Gibson Njenje, who was later fired.

Kasrils was dissatisfied with Masetlha’s explanations and asked the inspector general of intelligence to investigate the circumstances of the surveillance.

On October 17 2005, the inspector general reported to Kasrils that Macozoma’s surveillance was unauthorised and Masetlha had deliberately tried to mislead the investigation and Kasrils. He recommended disciplinary against Masetlha.

On October 20 2005, Masetlha was given a letter signed by Kasrils, and in Mbeki’s presence, saying he was suspended.

Three weeks later, on November 12 2005, Masetlha challenged his suspension in court, claiming it was unlawful.

Three days later, on November 15 2005, Mbeki recorded in a presidential minute that the decision to suspend Masetlha was his, but Masetlha did not accept this.

On March 10 2006, Masetlha launched a fresh court application directed at setting aside his suspension and, according to the judgement, attacked Mbeki’s integrity in the court papers and accused him of lying.

On March 20 2006, Mbeki amended Masetlha’s term of office so that it expired on March 22 2006 — 21 months and nine days earlier than the original term.

This was done on the advice of Public Service and Administration Minister Geraldine Fraser-Moleketi, who believed it would be more humane for Masetlha and his family because he would be entitled to remuneration for the remaining period of his term of office.

Even though this was couched in the language of alteration of conditions of service, it was effectively a decision to dismiss him or end his term of office.

‘It is not easy’

The court found it was important that trust between the parties had irretrievably broken down.

Masetlha should not be reinstated because it was not appropriate to foist upon the president an intelligence agency director general he did not trust.

The public would also not be served by an intelligence head who said he did not trust his principals — the president and the minister.

Relating to Masetlha’s financial position, the court ruled Masetlha had returned the payment for the rest of his term because he did not want to prejudice his claim for reinstatement.

So, he should be entitled to be placed in the same position he would have been if he had served his full term.

Judge Albie Sachs wrote in his judgement that this should not be an act of grace, but fair labour practice. He also wrote that Masetlha had not been dismissed for misconduct.

Masetlha said outside the court that the remuneration would have to be negotiated and that he would not simply accept any payment.

”I hope they pay before Christmas because I am going to take a long holiday.

”Nineteen months without any payment … can you imagine what happens to your family, as head of family? It is not easy,” he said.

The Presidency said it accepted the court’s decision.

Masetlha still faces other court cases relating to alleged hoax emails. — Sapa