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)
3 April 2007

Billy Masethla’s last stand

Will the Constitutional Court have the guts to overturn Billy Masethla’s suspension and dismissal last year by President Thabo Mbeki, asked the Mail & Guardian recently? After reading Masethla’s heads of arguments (brilliantly drafted by Advocates Neil Tuchten, SC and Matthew Chaskalson) I think the newspaper asked the wrong question.

It is clear that the lawyers for Intelligence Minister Ronnie Kasrils and President Mbeki, made a series of monumental blunders in handling the suspension and dismissal of Masethla. It is not, however, a foregone conclusion that the Court would find against the President because the judges might see his power to fire the head of the Intelligence Services as such a political decision that the President should be given a wide margin of appreciation in such a matter.

What intrigues me though, is why Mr. Masethla (pictured) has chosen to go all the way to the Constitutional Court to challenge his suspension and dismissal on procedural grounds. He was offered a payout of the rest of his contract – which would have expired at the end of the year in any case. And if the decision by the President is set aside on procedural grounds, the President would be able to fire him again – this time using the correct legal procedures.

This suggests that Mr. Masethla is not taking this case all the way to the Constitutional Court for the sake of money or to get his job back. I think there may be two interrelated explanations for his move.

First, it would, of course, be extremely embarrassing for the President if the Constitutional Court found that he completely bungled the suspension and firing of Mr. Masethla. It would suggest – as Mr Masethla’s lawyers put it – that the President and his advisers saw themselves as above the law in dealing with matters concerning the intelligence service.

Such a finding would have political repercussions as it would enhance the view (no matter how unfairly held) that President Mbeki has overstepped the mark in his long-standing battle with Mr. Jacob Zuma and others in the succession battle. You see, Mbeki’s critics would say, we told you our President does not play fair.

Second, it is interesting to note that Mr. Masethla’s lawyers strongly argue that in any event, the matter should be sent back to the High Court in order that oral evidence could be presented by, amongst others, President Mbeki, to make a determination on the factual disputes in the case. President Mbeki will then have to take the stand to give evidence on sensitive and embarrassing events around the firing of Mr. Masethla. He will also have to justify why he had fired Mr. Masethla and will have to submit himself to cross-examination.

Could it be that Mr. Masethla has some explosive information that could be put to Mbeki under cross-examination that would strike at the heart of Mbeki’s credibility? Or is Mr. Masethla hoping that Mr. Mbeki’s performance under cross-examination would be so disastrous that it would finally put an end to the President’s ambition to stand for a third term as President of the ANC? Mbeki has never been good under questioning and generally politicians make bad witnesses, so anything is possible. I, for one, would be fascinated to see how President Mbeki copes with cross-examination.

One thing is certain, this case is turning into one of the politically most significant cases ever heard by the Constitutional Court.

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