Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
15 January 2007

Billy, Billy, Billy…..

Why has Billy Masethla, former Director General of the National Intelligence Agency (NIA), lodged papers with the Constitutional Court to challenge his dismissal by the President?

According to the Weekender newspaper Mr. Masethla’s application relies on two grounds.

The first is that Mbeki had no powers in terms of the constitution to amend Masetlha’s contract. Mbeki shortened Masetlha’s contract, which was due to end in December this year, to March 22 last year. The second reason is that a public servant cannot be dismissed without a fair hearing.

Maybe Mr Masethla has other, non-legal reasons for taking his fight with President Mbeki to the CC, but if he thinks he has a chance of winning the case he is either stupid or delusional or he has hired a stupid, delusional or dishonest lawyer to advise him.

These are strong words, so let me explain.

Section 209 Constitution explicitly states that the President has the power to appoint the heads of the various intelligence services and that he must assume political responsibility for the service. If the President has the constitutional power to appoint the head of intelligence, he also has the power to fire him.

When firing the Director General of the NIA the President is exercising a constitutional power and must act in a way that does not infringe on the Constitution.

The Constitutional Court has made clear that while the President does not have unlimited discretion when he acts in this way, a wide margin of appreciation will be allowed. The more political a decision, the more reluctant the Court would be to interfere.

Where the President acts in bad faith – firing Masethla, say, because Masethla is about to reveal that the President was involved in a corruption scandal – then the CC may well intervene to check the abuse of power by the President.

But where there has been a breakdown in trust between the two men and there is clearly a good faith political reason for firing the NIA chief, I cannot imagine that a court would intervene to say the President did not have the power to end the man’s contract or that because he was not dealt with like a civil servant working in the Home Affairs office in Upington, the firing was illegal.

The NIA boss is not a civil servant, but a political appointee akin to a cabinet Minister of Deputy President. Regardless of what the text of the Constitution or the legislation might say, the CC will never agree to what Mr Masethla is asking for because it would require the court to intrude in a political arena in a way that would overstep the separation of powers line (as they see it).

The judicial politics of the CC precludes it from such drastic intervention in an essentially political decision. The idea is so far-fetched that to my mind something else must be behind the application.

Who knows, maybe Mr Masethla wants to make new allegations/revelations about the spy saga and he thinks the legal process will provide him with some legal and political cover?

A strange case indeed.

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