The rather newsworthy dismissal of Billy Masetlha from the position of director general of the National Intelligence Agency (NIA) in 2005 has developed a rather interesting new aspect. Just what legislation is applicable to this dismissal? And if the dismissal is found to be unlawful, there's the really interesting prospect as to how the breach might be remedied?
It is very much a procedural issue, as highlighted here: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.
full story from M&G here
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.
from this article on M&G here