Masetlha v President of the Republic of South Africa and Another

This morning, the Constitutional Court handed down judgment in the matter between Mr Masetlha, the former Director-General of the National Intelligence Agency (NIA), and the President of the Republic of South Africa. The Court was called upon to decide whether two decisions taken by the President, one to suspend and the other to terminate Mr Masetlha’s employment as head of the NIA, was constitutionally permissible.

In a majority judgment, in which Langa CJ, Navsa AJ, Nkabinde J, O’Regan J, Skweyiya J and Van der Westhuizen J concurred, Moseneke DCJ held that the President’s power to appoint and dismiss is not exclusively located in the provisions of the Public Service Act, which provides for the manner and form of the service contract, but must be read in conjunction with the prevailing constitutional and legislative scheme, which implicitly confers on the President such power. He concluded that the President had the power to terminate the employment of the applicant under section 209 of the Constitution read with section 3 of the Intelligence Services Act.

In a minority judgment in which Madala J concurred, Ngcobo J held that under the Constitution the President has a duty to act fairly and that duty precludes the President from unilaterally altering the term of office of the head of the NIA. He held that this is a requirement of the rule of law which is one of the foundational values of our constitutional democracy. He found, however, that on the objective facts before the Court, there has been an irreparable breakdown of trust between the President and Mr Masetlha. Mutual trust, he held, is fundamental to the relationship between the President and Mr Masetlha. On the facts of this case, it is therefore not appropriate to re-instate Mr Masetlha in his former position.

In a separate judgement Sachs J concurred in the order made by the majority, and held that given the loss of the trust that lay at the heart of the specific constitutionally defined relationship between the President and Mr Masetlha, the termination of the appointment was not unlawful. Fairness further presupposed that appropriate concern be displayed for the reputational consequences of an incumbent who is about to be relieved of a high profile position in public life. Sachs J added that fair dealing could not be separated from civility, which, in a constitutional sense, involved more than just courtesy or good manners and was one of the binding elements of a constitutional democracy.

The Court also ordered the President to pay the applicant remuneration, allowances, pension and other benefits for the period starting on 22 March 2006 up to 1 December 2007, all of which must place the applicant in the same financial position that he would have been in but for the early termination of his term of office. The Court has made no order as to costs.

Source: The Constitutional Court